Interpretation ID: GAO telematics Sept 13

Ashley G. Alley, Esq.

Office of General Counsel

Government Accountability Office (GAO)

441 G St., NW

Washington, DC 20548

Dear Ms. Alley:

This responds to your e-mail asking about the extent to which the National Highway Traffic Safety Administration (NHTSA) can regulate wireless communication technologies in motor vehicles that might be sources of driver distraction. You asked us to address:

1)      Integrated, in-vehicle technologies (e.g., OnStar);

2)      Nomadic technologies (e.g., handheld cell phones); and

3)      After-market technologies that are integrated after the vehicle is manufactured (e.g., a satellite TV).

As you know, NHTSA has authority under 49 U.S.C. Chapter 301 to issue Federal motor vehicle safety standards for motor vehicles and motor vehicle equipment. As discussed below, the answer to the issue of whether that authority permits the agency to regulate the technologies you listed is dependent, first, on whether the items and systems are considered motor vehicle equipment under Chapter 301 and, second, if they are so considered, whether issuing a standard for the items and systems would meet the statutory requirements for a standard, especially the requirement of meeting the need for motor vehicle safety.

NHTSAs Authority to Regulate Wireless Communication Technologies

that might be Sources of Driver Distraction

Background

Based on the definitions of motor vehicle safety and motor vehicle safety standard in subsection 30102(a)(8) and (9),[1] the agency has authority to issue standards for motor vehicle equipment as well as motor vehicles.

The question of whether something qualifies as motor vehicle equipment is addressed by the definition of that term in subsection 30102(a)(7):

"(M)otor vehicle equipment" means--

(A) any system, part, or component of a motor vehicle as originally manufactured;

(B) any similar part or component manufactured or sold for replacement or improvement of a system, part, or component, or as any accessory or addition to a motor vehicle; or

(C) any device or an article or apparel ... that is not a system, part, or component of a motor vehicle and is manufactured, sold, delivered, offered, or intended to be used only to safeguard motor vehicles and highway users against risk of accident, injury, or death. (Emphasis added.)

In order to issue a standard for motor vehicle equipment, the agency must show that the standard meets the requirements in subsection 30111(a). It states that (e)ach standard shall be practicable, meet the need for motor vehicle safety, and be stated in objective terms.

Discussion

Integrated, in-vehicle technologies (e.g., OnStar)

You first asked about integrated, in-vehicle technologies, e.g., OnStar. Given that you separately ask about after-market technologies, we assume that this question is limited to items and systems that are integrated into the vehicle prior to first retail sale.

The initial issue for these items and systems is whether they are considered motor vehicle equipment under the definition quoted above. Under 30102(a)(7), all items and systems that are integrated into a vehicle prior to its first retail sale are within the definition of motor vehicle equipment. Accordingly, the agency has authority to issue Federal motor vehicle safety standards for integrated, in-vehicle technologies.

However, given the requirement in subsection 30111(a) that each standard meet the need for motor vehicle safety, we can establish standards for these technologies only to the extent that we can show a safety benefit for those standards. A challenge in using our authority is that while research suggests that use of personal communication devices by drivers can adversely affect driving performance, it is difficult to find confirmation that these findings represent actual real-world crash risks. It would also be difficult to develop effective countermeasures for any risks whose existence we could demonstrate.

Nomadic technologies (e.g., handheld cell phones)

Next, you asked about nomadic technologies, e.g., handheld cell phones. Given your other questions, we assume that this question is limited to items and systems that are not integrated into the vehicle. Since these items and systems would not be integrated into the vehicle, they would be motor vehicle equipment under subsection 30102(a)(7) only if they were considered accessories under (a)(7)(B).

NHTSA uses two criteria in determining whether a device is an "accessory." The first criterion is whether a substantial portion of the expected use of the item is related to the operation or maintenance of motor vehicles. We determine a product's expected use by considering product advertising, product labeling, and the type of store that retails the product, as well as available information about the actual use of the product. The second criterion is whether the product is purchased or otherwise acquired, and principally used, by ordinary users of motor vehicles. If a product satisfies both criteria, then the product would be an "accessory."

Applying these criteria to cell phones, it is our opinion that a substantial portion of the expected uses of a cell phone would not be related to the operation or maintenance of motor vehicles. While a cell phone can be used in a motor vehicle, there is no particular nexus between the function of a cell phone and either the operation or the maintenance of motor vehicles. The cell phone performs the same function wherever it is taken by the user, e.g., on public sidewalks, in buildings, and so forth. Because the first prong of the two-part test for an accessory is not met, a cell phone is not an item of motor vehicle equipment.

The same criteria would be applied in determining whether other items or systems incorporating nomadic technologies are accessories. We cannot provide a broad opinion covering all nomadic technologies, since specific information about the item or system and its expected uses is needed to apply these criteria.

After-market technologies that are integrated after the vehicle is manufactured (e.g.., a satellite TV)

You also asked us to address after-market technologies that are integrated after the vehicle is manufactured (e.g., a satellite TV). Given your other questions, we assume that this question is limited to items and systems that are integrated into the vehicle after first retail sale.

Some items and systems incorporating these technologies would come within the subsection 30102(a)(7) definition of motor vehicle equipment. This would likely be the case for satellite TV systems marketed for use in motor vehicles. However, in order to provide a specific opinion, we would need detailed information about the specific product at issue. For those technologies that are items of motor vehicle equipment, the agency would face the same challenges described above in discussing integrated, in-vehicle technologies.

Other Considerations

We note that our safety standards generally apply to new motor vehicles and new motor vehicle equipment up to the time of first retail sale. Manufacturers, distributors, dealers, or motor vehicle repair businesses modifying a new or used vehicle are prohibited by section 30122 from knowingly making inoperative any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard. For example, installation of after-market technologies reduce the effectiveness of devices or elements of design installed pursuant to our crashworthiness standards would be prohibited.

The make inoperative provision does not, however, apply to modifications made by vehicle owners themselves to their own vehicles. Thus, while we recommend that owners maintain the safety of their vehicles, Federal law does not prevent them from making modifications that take their vehicle out of compliance with a safety standard. The States, however, can regulate the changes that vehicle owners make to their vehicles.

I hope this information is helpful. If you have any further questions about NHTSAs authority to regulate motor vehicle and motor vehicle equipment manufacturers, please contact Dorothy Nakama at (202) 366-2992. She may be reached at this address.

Sincerely yours,

Anthony M. Cooke

Chief Counsel

NCC-20:DNakama:62992:mar:jul/19/07:OCC#07-003616

[S:\NCC20\INTERP\VSA\07-003616 GAO drn.doc]

cc:NCC-20, subj/chron, DN, NVS-100, NVS-200, NPO-100

Interps, VSA 102(4), Docket