Interpretation ID: nht94-7.30

DATE: March 22, 1994

FROM: Gerald J. Gannon -- Attorney, GM Legal Staff

TO: John Womack, Esq. -- Acting Chief Counsel, NHTSA

COPYEE: Barry Felrice, Associate Administrator for Rulemaking; Stanley Scheiner - Office of Market Incentives; Barbara A. Gray - Office of Market Incentives; Charles W. Babcock, Esq. - General Motors Legal Staff; Milford R. Bennett - General Motors Safety Center; Richard F. Humphrey - General Motors Safety Center; Lorenzo B. Perkins - General Motors Safety Center

TITLE: FMVSS 114 - Automatic Transmission Park-Lock Override

ATTACHMT: Attached to 9-16-94 letter from John Womack to Gerald Gannon (A42; STD. 114)

TEXT: This letter requests the opinion of the Chief Counsel's Office on this question: did the agency intend to require that vehicles with an automatic transmission with a "park" provision must prevent steering after removal of the key in order to have an ignition key-operated transmission shift override device? Uncertainty results from provisions added to FMVSS 114 on March 26, 1991 (56 Fed. Reg. 12464, 12469) that were basically continued on January 17, 1992 (57 Fed. Reg. 2039).

BACKGROUND

May 30, 1990

The agency amended FMVSS 114 to require vehicles with an automatic transmission with a "park" position to have a key-locking system that prevents removal of the key unless the transmission or transmission shift lever is locked in "park" or becomes locked in "park" as the direct result of removing the key. "The amendment is intended to reduce the potential for accidents caused by shifting the transmission lever on parked vehicles with automatic transmissions.", by children (55 Fed. Reg. 21868). In the Preamble the agency approved of an ignition key-operated manual override device:

"The agency has decided that a superior approach is to permit a manual override to the electrical shift system, but only if such an override has to be operated by the key used to control the vehicle." (emphasis added)

(Id. at 21873, left column)

Use of such a key-operated override device was not limited to a vehicle whose steering is prevented after removal of the key.

March 26, 1991

Responding to petitions for reconsideration of the Final Rule, the agency amended the above Final Rule primarily to permit certain key-less override devices so that in the event of electrical failure the ignition key can be removed or the transmission shifted out of "park". This was done because in the event of a battery failure certain vehicle designs would not permit removal of the key from the ignition or shifting the transmission from "park" to facilitate towing. At the same time the agency attempted to add to the regulation permission to use the previously approved ignition key-operated override device (56 Fed. Reg. 12464).

The Preamble to that response states:

One way to prevent access by children and thus vehicle roll-away is to permit an override that is operable only by the vehicle's key because this typically ensures that the override is being activated by an authorized user. The preamble to the final rule explained that such a key-operated override was permissible. Based on the apparent confusion caused by not expressly stating this in the regulatory text, upon reconsideration, the agency has modified Standard No. 114 so that section S4.2.2(b) now states that the means for activating the override device may be operable by the key, as defined in S3 of the standard.

...

The agency emphasizes that the amendment permits a key-less emergency override only if theft protection is ensured by a steering lock. (emphasis added)

(Id at 12466, 12467)

S4.2.2(b) was added to permit moving the automatic transmission shift lever from "park" after removal of the key from the ignition by activating an emergency override device. If the device is activated by the key, as defined in S3, the device need not be covered. If there is a key-less device, the device must be "covered by a non-transparent surface which, when installed, prevents sight of and activation of the device and which is removable only by use of a screwdriver or other similar tool."

The Preamble to that Final Rule suggests the phrase "provided that steering is prevented when the key is removed" was inadvertently placed as shown below:

(b) Notwithstanding S4.2.1, each vehicle specified herein may have a device which, when activated, permits moving the transmission shift lever from "park" after the removal of the key provided that steering is prevented when the key is removed. The means for activating the device may be operable by the key, as defined in S3. The device may be operable by another means which is covered by a non-transparent surface which, when installed, prevents sight of and activation of the device and which is removable only by use of a screwdriver or other similar tool. (emphasis added)

(Supra at 12469)

However, to be consistent with the Preamble concern about theft protection for only a key-less override device, the phrase should have been located as shown below:

(b) Notwithstanding S4.2.1, each vehicle specified herein may have a device which, when activated, permits moving the transmission shift lever from "park" after the removal of the key. The means for activating the device may be operable by the key, as defined in S3. Provided that steering is prevented when the key is removed, the device may be operable by another means which is covered by a non-transparent surface which, when installed, prevents sight of and activation of the device and which is removable only by use of a screwdriver or other similar tool. (emphasis added)

January 17, 1992

In response to Toyota and Honda's petitions for reconsideration of the March 1991 rule the agency stated "the notice further amends the requirements to provide manufacturers appropriate flexibility while continuing to meet the need for safety" and delayed until September 1, 1993 "the requirement for inaccessibility for the emergency release button on the transmission shift override device". The increased flexibility expressly allows releasing a key in any gear shift position in the event of battery failure. The delay of the requirement to cover a key-less transmission shift override device was intended to help manufacturers unable to meet the September 1, 1992 effective point. (57 Fed. Reg. 2039-40)

At that time the agency reiterated:

The May 1990 final rule permitted only key-based override systems. In response to petitions for reconsideration, NHTSA also decided to permit key-less overrides that are not visible and are "child-proof". . . . Accordingly, the agency decided to permit key-less override devices only if they are covered by a non-transparent device which, when in place, prevents sight of and activation of the device and which is removable only by use of a screwdriver or other tool.

(Supra at 2040)

With respect to transmission shift override devices the Final Rule resulting from that rulemaking states:

S4.2.2(b) is revised to read as follows:

(b)(1) 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 provided that steering is prevented when the key is removed.

(2) For vehicles manufactured on or after September 1, 1993, the means for activating the device shall either be operable by the key, as defined in S3, or by another means which, when installed, is covered by a non-transparent surface which, when installed, prevents sight of and activation of the device and which is removable only by use of a screwdriver or other similar tool.

(Supra at 2043 - emphasis added))

OUR INTERPRETATION

We believe that the agency intended to continue to permit use of an ignition key-operated shift override device in all vehicles equipped with an automatic transmission with a "park" provision. We do not believe that the agency for the first time intended, without comment, to limit a shift override device "operated by the key used to control the vehicle" only to vehicles whose steering is prevented when the key is removed from the ignition. Although the steering prevention concern expressed in the Preamble was confined to key-less shift override devices, the Final Rule might be interpreted to limit even an override device operable by the ignition key to a vehicle whose steering is prevented when the key is removed. However, since an ignition key-operated shift override device requires use of that key, it could also be argued that the key is no longer removed from the vehicle, and is required to be used by someone who is authorized and therefore steering need not be prevented.

SUGGESTION

In the event that the agency concurs with my interpretation, in some future rulemaking the agency may also wish to clarify the regulation as follows:

(b)(1) Notwithstanding S4.2.1, each vehicle specified therein may have a device which, when activated, permits moving the transmission shift lever from "park" after removal of the key.

(2) For vehicles manufactured on or after September 1, 1993, the means for activating the device shall either be operable by the key, as defined in S3, or, provided that steering is prevented when the key is removed, by another means which, when installed, is covered by a non-transparent surface which, when installed, prevents sight of and activation of the device and which is removable only by use of a screwdriver or other similar tool.

CONCLUSION

General Motors would like the flexibility to offer automatic transmission-equipped vehicles with a "park" position and an ignition key-operated shift override device in vehicles that would only prevent forward self-mobility after key removal as allowed by FMVSS 114 S4.2(b). Repeated Preamble comments regarding such a key-operated override device would permit this design. Your concurrence with this interpretation would be appreciated.

As always, we are prepared to discuss this matter further with you. If there are any questions, please contact me at (313) 974-1610.