54526 Federal Register / Vol. 73, No. 184 / Monday, September 22, 2008 / Rules and Regulations 

or in whole, shall provide clear and 

conspicuous notice, which takes into 

account the needs of persons with 

disabilities, to new subscribers of its 

non-election or partial election to 

provide Alert messages at the point-ofsale. 

(b) The point-of-sale includes stores, 

kiosks, third party reseller locations, 

web sites (proprietary or third party), 

and any other venue through which the 

CMS provider’s devices and services are 

marketed or sold. 

(c) CMS providers electing to transmit 

alerts ‘‘in part’’ shall use the following 

notification: 

NOTICE REGARDING TRANSMISSION OF 

WIRELESS EMERGENCY ALERTS 

(Commercial Mobile Alert Service) 

[[CMS provider]] has chosen to offer 

wireless emergency alerts within portions of 

its service area, as defined by the terms and 

conditions of its service agreement, on 

wireless emergency alert capable devices. 

There is no additional charge for these 

wireless emergency alerts. 

Wireless emergency alerts may not be 

available on all devices or in the entire 

service area, or if a subscriber is outside of 

the [[CMS provider]] service area. For details 

on the availability of this service and 

wireless emergency alert capable devices, 

please ask a sales representative, or go to 

[[CMS provider’s URL]]. 

Notice required by FCC Rule 47 CFR 

10.240 (Commercial Mobile Alert Service). 

(d) CMS providers electing in whole 

not to transmit alerts shall use the 

following notification language: 

NOTICE TO NEW AND EXISTING 

SUBSCRIBERS REGARDING 

TRANSMISSION OF WIRELESS 

EMERGENCY ALERTS (Commercial Mobile 

Alert Service) 

[[CMS provider]] presently does not 

transmit wireless emergency alerts. Notice 

required by FCC Rule 47 CFR 10.240 

(Commercial Mobile Alert Service). 

§ 10.250 Notification to Existing 

Subscribers of Non-Participation in CMAS. 

(a) A CMS provider that elects not to 

transmit CMAS Alert Messages, in part 

or in whole, shall provide clear and 

conspicuous notice, which takes into 

account the needs of persons with 

disabilities, to existing subscribers of its 

non-election or partial election to 

provide Alert messages by means of an 

announcement amending the existing 

subscriber’s service agreement. 

(b) For purposes of this section, a 

CMS provider that elects not to transmit 

CMAS Alert Messages, in part or in 

whole, shall use the notification 

language set forth in § 10.240 (c) or (d) 

respectively, except that the last line of 

the notice shall reference FCC Rule 47 

CFR 10.250, rather than FCC Rule 47 

CFR 10.240. 

(c) In the case of prepaid customers, 

if a mailing address is available, the 

CMS provider shall provide the required 

notification via U.S. mail. If no mailing 

address is available, the CMS provider 

shall use any reasonable method at its 

disposal to alert the customer to a 

change in the terms and conditions of 

service and directing the subscriber to 

voice-based notification or to a Web site 

providing the required notification. 

§ 10.260 Timing of Subscriber Notification. 

A CMS provider that elects not to 

transmit CMAS Alert Messages, in part 

or in whole, must comply with 

§§ 10.240 and 10.250 no later than 60 

days following an announcement by the 

Commission that the Alert Aggregator/ 

Gateway system is operational and 

capable of delivering emergency alerts 

to participating CMS providers. 

§ 10.270 Subscribers’ Right To Terminate 

Subscription. 

If a CMS provider that has elected to 

provide CMAS Alert Messages in whole 

or in part thereafter chooses to cease 

providing such alerts, either in whole or 

in part, its subscribers may terminate 

their subscription without penalty or 

early termination fee. 

§ 10.280 Subscribers’ Right To Opt Out of 

CMAS Notifications. 

(a) CMS providers may provide their 

subscribers with the option to opt out of 

both, or either, the ‘‘Child Abduction 

Emergency/AMBER Alert’’ and 

‘‘Imminent Threat Alert’’ classes of 

Alert Messages. 

(b) CMS providers shall provide their 

subscribers with a clear indication of 

what each option means, and provide 

examples of the types of messages the 

customer may not receive as a result of 

opting out. 

[FR Doc. E8–21946 Filed 9–19–08; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 571 

[Docket No. NHTSA–2008–0068] 

RIN 2127–AK19 

Federal Motor Vehicle Safety 

Standards; Electronic Stability Control 

Systems; Controls and Displays 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT). 

ACTION: Final rule; response to petitions 

for reconsideration. 

SUMMARY: On April 6, 2007, NHTSA 

published a final rule establishing a new 

Federal motor vehicle safety standard 

requiring light vehicles to be equipped 

with electronic stability control systems. 

The final rule was established as part of 

a comprehensive plan for reducing the 

serious risk of rollover crashes and the 

risk of death and serious injury in those 

crashes. This document responds to 

several petitions for reconsideration of 

the final rule. After carefully 

considering the issues raised, the agency 

is granting some aspects of the petitions, 

and denying some aspects. This 

document amends the final rule 

accordingly. This document also fulfills 

the obligations of the United States with 

respect to initiating rulemaking in order 

to comply with the global technical 

regulation (GTR) for ESC, adopted on 

June 26, 2008. 

DATES: This rule is effective October 22, 

2008. 

ADDRESSES: Petitions for reconsideration 

should refer to the docket number and 

be submitted to: Administrator, National 

Highway Traffic Safety Administration, 

1200 New Jersey Avenue, SE., West 

Building, 4th Floor, Washington, DC 

20590. Note that all documents received 

will be posted without change to the 

docket, including any personal 

information provided. Please see the 

Privacy Act discussion under section IV 

on Rulemaking Analyses and Notices 

below. 

FOR FURTHER INFORMATION CONTACT: For 

technical issues, contact Nathaniel 

Beuse, Office of Crash Avoidance 

Standards, by telephone at (202) 366– 

4931, or by fax at (202) 366–7002. For 

legal issues, contact Rebecca Yoon, 

Office of the Chief Counsel, by 

telephone at (202) 366–2992, or by fax 

at (202) 366–3820. 

Both persons may be reached by mail 

at the following address: National 

Highway Traffic Safety Administration, 

U.S. Department of Transportation, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Summary of Final Rule; Response to 

Petitions for Reconsideration 

II. Background 

A. Benefits of ESC 

B. April 2007 Final Rule 

C. Summary of Petitions for 

Reconsideration to the Final Rule 

III. Discussion and Analysis of Responses to 

Petitions for Reconsideration 

A. Telltale Issues 

1. Use of a Two-Part ‘‘ESC Off’’ Telltale 


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Federal Register / Vol. 73, No. 184 / Monday, September 22, 2008 / Rules and Regulations 54527 

1This is a basic problem of vehicle dynamics: in 

order to be stable, a vehicle should experience less 

side-to-side movement, but in order to be 

responsive, a vehicle must be able to move side-toside as necessary. Proper and safe vehicle handling, 

which ESC facilitates, must strike a balance 

between stability and responsiveness depending on 

the situation. Thus, it is possible that increasing 

stability in response to driving conditions could 

decrease responsiveness—yet S5.4.1 as written 

requires both stability and responsiveness to be 

satisfied by the greatest margin, which is not always 

possible or desirable. This is why the agency is 

revising this section. 

2 Dang, J., Statistical Analysis of the Effectiveness 

of Electronic Stability Control (ESC) Systems—Final 

Report, DOT HS 810 794, U.S. Department of 

Transportation, Washington, DC (July 2007). 

Available at Docket No. NHTSA–2007–28629, item 

2. 

3 Id. 

4 Docket No. NHTSA–2007–27662, item 1; 72 FR 

17236 (Apr. 6, 2007). 

2. Inclusion of ESC-Related Systems in ESC 

Malfunction Telltale Operational 

Requirements 

3. Compliance Dates for Telltale 

Requirements 

B. Multi-Function ESC Controls 

C. ‘‘ESC Off’’ Control Labeling 

D. Disconnection of the Optional ‘‘ESC 

Off’’ Control 

E. Automatic Return of ESC System to 

‘‘On’’ Mode for Each Ignition Cycle 

F. Low-Speed Threshold for ESC Operation 

G. Fault Detection and Cancellation Test 

Procedures 

H. Effective Dates for Amended Procedures 

and Requirements 

I. Inclusion of Roll Stability Control in the 

Scope of the Final Rule 

J. NHTSA’s Rulemaking Analysis on 

Preemption 

K. International Harmonization and the 

Global Technical Regulation on ESC 

IV. Rulemaking Analyses and Notices 

V. Regulatory Text 

I. Summary of Final Rule; Response to 

Petitions for Reconsideration 

In this document, NHTSA responds to 

petitions for reconsideration of its April 

2007 final rule concerning electronic 

stability control (ESC) systems. That 

rule established a new Federal Motor 

Vehicle Safety Standard (FMVSS) No. 

126, Electronic Stability Control 

Systems, which sets forth requirements 

for these systems on new light vehicles, 

to be applicable to all light vehicles by 

September 1, 2011. 

We are granting some of the petitions 

in part. In granting these petitions, 

today’s final rule makes several changes 

to the regulatory text of 49 CFR 571.126, 

Electronic Stability Control Systems, 

and of 49 CFR 571.101, Controls and 

Displays. These are generally minor 

changes, all of which are consistent 

with agency’s goal in the original final 

rule to encourage rapid installation of 

this life-saving technology. Changes to 

the regulatory text are summarized 

below. 

We are denying a petition from the 

American Association for Justice (AAJ) 

to withdraw preemption language from 

the regulatory analysis section of the 

final rule, and to expand the scope of 

the final rule to require roll stability 

control in addition to ESC. 

Summary of Changes 

1. In FMVSS No. 101, to avoid 

confusion regarding the compliance 

date for ESC telltale requirements, the 

agency is adding ‘‘As of September 1, 

2011’’ in the relevant places to 

paragraphs S5.5.2 and S5.5.5 and Table 

1. 

2. To clarify that related vehicle 

systems may use the ESC malfunction 

telltale and that the ESC malfunction 

telltale may flash to indicate operation 

of related systems, the agency is slightly 

revising S5.3.3 and adding a new 

S5.3.10 to FMVSS No. 126. 

3. For purposes of clarification, the 

agency is revising S5.3.9 in FMVSS No. 

126 to remove language that might be 

interpreted to require the ESC 

malfunction telltale to illuminate to 

indicate a disconnection of the ESC Off 

control. 

4. To simplify the telltale 

requirements, we are also allowing twopart telltales that are able to display 

both the ‘‘ESC malfunction’’ and ‘‘ESC 

Off’’ messages. 

5. To avoid any potential negative 

safety consequences of requiring 

vehicles to restart in 2-wheel drive 

when they are using 4-wheel drive to 

navigate difficult terrain, the agency is 

expanding the exception to S5.4.1’s key 

cycle automatic ESC reactivation 

requirement in FMVSS No. 126. We are 

revising S5.4.1 to tie the exception 

directly to the low-range 4-wheel drive 

configuration, and adding a definition 

for 4-wheel drive low-range 

configuration. For the same reason, the 

agency is revising S5.4.1’s default mode 

requirement to refer to ESC modes 

within the same drive configuration. 

6. FMVSS No. 126 requires that ESC 

systems meet two fundamental 

performance criteria, stability and 

responsiveness. It is possible that these 

performance criteria can conflict in 

some drive configurations,1 thereby 

creating ambiguity with respect to the 

existing requirement in S5.4.1 that 

refers to an ESC mode that satisfies the 

performance requirements ‘‘by the 

greatest margin.’’ To address this, the 

agency is revising S5.4.1 to specify that 

upon vehicle restart, ESC systems must 

revert to the manufacturer’s original 

default mode for that drive 

configuration. These modes, with some 

exceptions as noted, must meet the 

stability and responsiveness 

requirements of the standard. 

7. To clarify that ESC systems need 

not be operational before they have 

initialized, the agency is adding 

S7.10.2’s initialization procedure to 

S7.10.4 and S6.3.1 of FMVSS No. 126. 

8. In recognition of the fact that many 

current ESC system designs cannot hold 

a malfunction in memory when the 

ignition is cycled off and then back on 

as required, S7.10.3 of FMVSS No. 126 

will not be mandatory until September 

1, 2011. 

9. To gain the substantial safety 

benefits of ESC as quickly as possible, 

and because we anticipate no negative 

safety consequences, the agency is 

accommodating current ESC systems by 

changing the low-speed cutoff for ESC 

operation from 15 km/h (9.3 mph) to 20 

km/h (12.4 mph) and adding a brake 

application to all initialization 

procedures in FMVSS No. 126. 

10. To clarify that the final rule did 

not prohibit multi-function ESC 

controls, the agency is adding language 

to that effect in S5.4 of FMVSS No. 126. 

11. To clarify changes made to the 

regulatory text, the agency is adding 

definitions for ‘‘drive configuration’’ 

and ‘‘mode’’ to S4 of FMVSS No. 126. 

II. Background 

A. Benefits of ESC 

Electronic stability control, or ESC, 

systems use automatic computercontrolled braking of individual wheels 

to assist the driver in maintaining 

control in critical driving situations in 

which the vehicle is beginning to lose 

directional stability at the rear wheels 

(spin out) or directional control at the 

front wheels (plow out). NHTSA’s crash 

data study of existing vehicles equipped 

with ESC demonstrated that these 

systems reduce fatal single-vehicle 

crashes of passenger cars by 36 percent 

and fatal single-vehicle crashes of sport 

utility vehicles (SUVs) by 63 percent.2

NHTSA estimates that ESC has the 

potential to prevent 70 percent of the 

fatal passenger car rollovers and 88 

percent of the fatal SUV rollovers that 

would otherwise occur in single-vehicle 

crashes.3

B. April 2007 Final Rule 

On April 6, 2007, NHTSA published 

a final rule establishing the new Federal 

Motor Vehicle Safety Standard (FMVSS) 

No. 126, Electronic Stability Control 

Systems, which sets forth requirements 

for these systems on new light vehicles.4

FMVSS No. 126 contains performance 

requirements that include both 

definitional and dynamic testing 

elements. These elements together 

ensure that ESC systems intervene 


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54528 Federal Register / Vol. 73, No. 184 / Monday, September 22, 2008 / Rules and Regulations 

5 Docket No. NHTSA–2006–25801, item 1; 71 FR 

54712 (Sept. 18, 2006). 

6 Docket No. NHTSA–2007–27662, item 9; 72 FR 

34409 (Jun. 22, 2007). 

7 Id., item 6. 

8 Id., item 4. 

9 Id., item 5. 

10Chrysler letter, id., item 12; Alliance/AIAM 

revised recommendations, id., item 10. 11See 72 FR 17236, 17276 (Apr. 6, 2007). 

properly to limit oversteer and 

understeer in order to provide the level 

of yaw (directional) stability associated 

with the high level of safety benefits 

observed in crash data studies of ESCequipped vehicles. FMVSS No. 126 also 

requires a standardized set of ESC 

telltales and controls. 

The new standard’s requirements for 

yaw stability control (that is, the parts 

of the standard with the biggest 

potential to prevent crashes) can be met 

by most ESC-equipped vehicles 

currently being manufactured. However, 

none of those vehicles appear to use the 

exact set of telltales and controls 

required by the new standard. In order 

to provide the American public with the 

substantial safety benefits of ESC as 

soon as possible, NHTSA accelerated 

the phase-in schedule in the final rule 

as compared to the schedule proposed 

in the September 2006 notice of 

proposed rulemaking (NPRM),5 but 

deferred the telltale and display 

requirements until the end of the phasein. Thus, the final rule set the phase-in 

as: 

• 55 percent of a manufacturer’s light 

vehicles manufactured during the 

period from September 1, 2008 to 

August 31, 2009 are required to comply 

with the standard; 

• 75 percent from September 1, 2009 

to August 31, 2010; 

• 95 percent from September 1, 2010 

to August 31, 2011; and 

• All light vehicles thereafter. 

This compares to the NPRM’s proposal 

for a 30/60/90/all phase-in schedule 

over the same time period. The agency 

noted in the final rule preamble that 

some manufacturers will have to 

depend on carry-forward credits for 

vehicles with complying ESC systems 

manufactured after June 5, 2007 (the 

effective date of the final rule) in order 

to meet the accelerated phase-in 

schedule. 

Regarding the deferral of the telltale 

and display requirements until the end 

of the phase-in period, although NHTSA 

perceived certain advantages with 

standardizing these requirements, we 

concluded that it was not practicable to 

implement the necessary changes under 

the accelerated phase-in schedule, and 

we were not willing to delay the phasein (and the expected safety benefits) for 

this reason alone. Accordingly, the 

agency prefaced many of the provisions 

in FMVSS No. 126 dealing with telltales 

and displays with the phrase ‘‘as of 

September 1, 2011.’’ However, after the 

final rule was published, we discovered 

that that phrase had been inadvertently 

omitted from two of the relevant 

provisions. NHTSA published a 

correction notice on June 22, 2007 to 

address this issue.6

C. Summary of Petitions for 

Reconsideration to the Final Rule 

Four parties petitioned for 

reconsideration of the April 6, 2007 

final rule: the American Association for 

Justice (AAJ); 7 Porsche Cars North 

America, Inc. (Porsche); 8 and in a joint 

petition, the Alliance of Automotive 

Manufacturers and the Association of 

International Automobile Manufacturers 

(Alliance/AIAM).9 Chrysler also 

submitted a letter supporting revised 

recommendations submitted by the 

Alliance/AIAM following its original 

petition for reconsideration.10 Most of 

the issues presented by the 

manufacturer petitioners addressed 

details of the requirements for controls 

and displays and their effect on phasein requirements. AAJ petitioned NHTSA 

to change language in the final rule 

preamble concerning the preemptive 

effect of Federal regulations, and also 

petitioned that the scope of the final 

rule be expanded to require roll stability 

control in addition to ESC that focuses 

on yaw stability. 

The next section addresses the 

petitions issue by issue, and provides 

the agency’s response for each issue. 

III. Analysis of and Response to 

Petitions for Reconsideration 

A. Telltale Issues 

1. Use of a Two-Part ‘‘ESC Off’’ Telltale 

The final rule requires an ESC 

malfunction telltale identified by the 

ISO symbol for ESC or the abbreviation 

‘‘ESC.’’ It also requires a second telltale 

to identify when the ESC system has 

been turned off by the driver. That 

telltale must be identified by the ISO 

symbol for ESC with the word ‘‘Off’’ 

below it, or the words ‘‘ESC Off.’’ 

Porsche Cars North America, Inc. 

(Porsche) originally commented to the 

NPRM that instead of requiring two 

completely separate telltales for the ESC 

malfunction and ESC Off messages, the 

rule should allow for a partial telltale 

with just the word ‘‘Off’’ adjacent to the 

ESC malfunction telltale. The ESC Off 

message would be created by 

illuminating the ‘‘Off’’ telltale and the 

ESC malfunction telltale 

simultaneously. The object of this 

design would be to save space on the 

instrument panel. 

NHTSA did not include Porsche’s 

suggested change in the final rule 

because we thought that allowing a 

partial telltale would have created a 

conflict with the requirement that the 

ESC Off status be indicated by the 

telltale whenever the driver has 

manually disabled the ESC. In the case 

where the ESC system detects a fault 

when it is in the manually disabled 

state, the ‘‘Off’’ part of the partial, twopart telltale would have to be 

extinguished to indicate the ESC 

malfunction.11

Porsche petitioned for reconsideration 

on NHTSA’s decision on two-part 

telltales. Specifically, Porsche explained 

in its petition that ‘‘in the rare case 

when a malfunction occurs after the 

driver has manually disabled the 

system,’’ its ESC system ‘‘would operate 

so that the malfunction event results in 

the manual control functionality being 

automatically disabled.’’ Thus, the ‘‘ESC 

Off’’ message would no longer be 

correct, because the ESC would have 

overridden the manual disablement; and 

the ‘‘ESC Malfunction’’ message would 

be correct. Porsche petitioned that 

NHTSA clarify that a two-part telltale 

would not be prohibited in the situation 

it described, and requested that NHTSA 

add a footnote to Table 1 of FMVSS No. 

101 that a two-part ESC Off telltale is 

acceptable if the parts are configured as 

depicted for the symbol or phrase 

stipulated by the table to identify the 

ESC Off telltale. 

Porsche also requested that a footnote 

be added to Table 1 indicating that the 

‘‘ESC Off’’ telltale ‘‘is mandatory only in 

the event that the system is manually 

disabled by the driver.’’ 

Agency Response: We are granting 

this petition in part and denying in part. 

We have considered the two-part telltale 

issue further and have concluded that 

there will be no significant safety 

consequences from allowing 

manufacturers to use a two-part telltale 

instead of entirely separate telltales for 

ESC malfunction and ESC Off. The 

situation that Porsche describes, where 

the ESC system overrides the driver’s 

‘‘Off’’ command if a malfunction occurs 

while the ESC system is disabled, would 

already meet the requirements of the 

final rule. This is because in that 

situation, it would be correct to 

extinguish the ‘‘Off’’ portion of the twopart telltale (because ESC would no 

longer be off), and leave only the ‘‘ESC’’ 

portion illuminated. Thus, for that 

particular case, a two-part telltale would 

satisfy NHTSA’s original requirement 


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Federal Register / Vol. 73, No. 184 / Monday, September 22, 2008 / Rules and Regulations 54529 

12These include paragraphs S5.3.1, S5.3.2, 

S5.3.4, S5.4.2, S5.5.2, and S5.5.6. 

13See supra note 5. 

that the ESC malfunction message be 

displayed without interfering with the 

ESC Off message, because the ESC 

would no longer be manually disabled. 

More generally, if an ESC system 

malfunction occurs after a driver has 

disabled ESC, requiring both telltales to 

illuminate at the same time, both 

telltales would convey essentially the 

same message to the driver: that ESC 

functionality has been reduced or 

eliminated. Because of this, and because 

we anticipate that ESC systems will 

likely only rarely malfunction after they 

have been manually disabled, upon 

further consideration we do not believe 

that requiring both messages to be 

presented simultaneously (and thus 

prohibiting two-part telltales) is 

necessary for safety. To build on 

Porsche’s example, if an ESC system 

uses a two-part telltale that illuminates 

both parts to convey the ‘‘ESC Off’’ 

message, but does not override the 

driver’s ‘‘Off’’ command if a 

malfunction occurs while ESC is 

disabled, the telltale would simply 

continue to display ‘‘ESC Off,’’ which 

would indicate to the driver that ESC 

functionality is reduced. Because the 

final rule requires ESC to return to ‘‘on’’ 

with each ignition cycle, the ‘‘Off’’ 

telltale must be extinguished, and the 

malfunction telltale can simply be 

illuminated at that point. We believe 

that this would not present significant 

safety problems, since the driver would 

still be notified promptly upon 

restarting the engine that the ESC 

malfunction exists. There would be no 

period in which the two-part telltale 

failed to convey the basic message that 

ESC functionality was reduced or 

eliminated. 

Implementing this change necessitates 

revision of paragraph S5.3.3 to clarify 

that when an ESC system uses a twopart telltale, the malfunction telltale 

need not illuminate if the ‘‘Off’’ telltale 

is illuminated. We are revising S5.3.3 

accordingly. 

However, we are denying the request 

to add a footnote to Table 1 of FMVSS 

No. 101 stating that a two-part ESC Off 

telltale is acceptable if the parts are 

simply configured as described. We do 

not believe that further clarification is 

necessary beyond what is already 

provided here. 

Additionally, we are denying 

Porsche’s request to add a footnote to 

Table 1 stating that the ‘‘ESC Off’’ 

telltale is mandatory only when the 

system is manually disabled by the 

driver. S5.4.3 of FMVSS No. 126 

requires that the ESC Off telltale 

indicate the status of the ESC system 

when certain controls other than the 

manual ESC Off control have the 

ancillary effect of turning ESC off. The 

suggested footnote would conflict with 

this requirement. 

2. Inclusion of ESC-Related Systems in 

ESC Malfunction Telltale Operational 

Requirements 

In the preamble to the ESC final rule, 

NHTSA agreed with commenters that a 

single malfunction telltale that relates 

generally to vehicle stability systems 

would be sufficiently informative for 

drivers, and would be effective in 

conveying the message that a 

malfunction has occurred which may 

require diagnosis and service by a repair 

facility. Thus, NHTSA included a 

footnote for Table 1 of FMVSS No. 101 

stating, as regards the ESC malfunction 

telltale, that ‘‘This symbol may also be 

used to indicate the malfunction of 

related systems/function including 

traction control, trailer stability assist, 

corner brake control, and other similar 

functions that use throttle and/or 

individual torque control to operate and 

share common components with the 

ESC system.’’ 

The Alliance/AIAM petitioned 

NHTSA to revise paragraphs S5.3.3 and 

S5.3.8 of FMVSS No. 126 to clarify that 

the ESC malfunction telltale may be 

illuminated to indicate a malfunction of 

related systems, and also may flash to 

indicate operation of a related system. 

Petitioners expressed concern that the 

omission of this clarification might 

create an inconsistency with FMVSS 

No. 101. 

Agency response: We are granting this 

petition in part. We agree that it would 

improve FMVSS No. 126’s clarity to 

amend the regulatory text to specify that 

related systems may use the ESC 

malfunction telltale and that the ESC 

malfunction telltale may flash to 

indicate operation of a related system. 

Instead of revising S5.3.3 and S5.3.8 as 

suggested by the Alliance/AIAM 

petition, we are revising S5.3.3 slightly, 

and are adding a new S5.3.10 to address 

these issues. S5.3.10 will state: 

Manufacturers may use the ESC 

malfunction telltale in a steady burning mode 

to indicate malfunctions of ESC-related 

systems/functions including traction control, 

trailer stability assist, corner brake control, 

and other similar functions that use throttle 

and/or individual wheel torque control to 

operate and share common components with 

the ESC system, and they may use the ESC 

malfunction telltale in a flashing mode to 

indicate operation of these ESC-related 

systems. 

We believe this addition will address 

the Alliance/AIAM’s concerns. 

3. Compliance Dates for Telltale 

Requirements 

The final rule allowed manufacturers 

greater lead time to standardize the 

presentation of ESC controls and 

displays, deferring many of these 

requirements until the end of the phasein, i.e., September 1, 2011. This was 

because NHTSA wanted to achieve the 

safety benefits of equipping vehicles 

with ESC as quickly as possible. 

Although the agency perceived certain 

advantages to standardizing controls 

and displays, it was not practicable to 

implement those changes in keeping 

with the accelerated phase-in schedule. 

Thus, many of the provisions of the 

final rule concerning controls and 

displays contain the phrase ‘‘as of 

September 1, 2011.’’ 12

The Alliance/AIAM petitioned 

NHTSA to include the phrase ‘‘as of 

September 1, 2011’’ in paragraphs 

S5.3.3 and S5.4.3 as well, since those 

paragraphs also concern controls and 

displays. Petitioners stated that 

‘‘Requiring manufacturers to meet the 

provisions of S5.3.3 and S5.4.3 [in 

keeping with the phase-in] will 

preclude the accrual of credits and 

prevent manufacturers from meeting the 

accelerated phase-in schedule specified 

in the final rule.’’ 

The Alliance/AIAM petition also 

requested that NHTSA clarify that the 

changes made to FMVSS No. 101 by the 

ESC final rule would also be mandatory 

at the same time as the controls and 

displays requirements in FMVSS No. 

126, by changing the mandatory 

compliance date for the FMVSS No. 101 

provisions in the final rule to September 

1, 2011. 

Agency response: The petition to add 

the compliance date to S5.3.3 and S5.4.3 

of FMVSS No. 126 is moot, because the 

change requested by the Alliance/AIAM 

has already been made in a correction 

notice published by NHTSA on June 22, 

2007.13

We are granting the petition to add 

the compliance date to the provisions in 

question in FMVSS No. 101. As written, 

FMVSS No. 101 could be read to 

prohibit controls and displays that 

FMVSS No. 126 would allow prior to 

September 1, 2011. NHTSA did not 

intend this result. Thus, we are adding 

‘‘As of September 1, 2011’’ to the 

provisions on ESC telltales and 

identifiers in S5.5.2, S5.5.5, and Table 1 

of FMVSS No. 101. 


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54530 Federal Register / Vol. 73, No. 184 / Monday, September 22, 2008 / Rules and Regulations 

14This question was also raised in a request for 

interpretation from Mr. Brian Latouf of General 

Motors North America, which the agency answered 

on August 29, 2007 (‘‘the GM request for 

interpretation’’. 

15Of paragraphs S5.2.1, S5.2.2, and S5.2.3. 16FMVSS No. 101, S4 Definitions, defines 

‘‘Adjacent’’ as ‘‘with respect to a control, telltale or 

indicator, and its identifier * * * (a) The identifier 

is in close proximity to the control, telltale or 

indicator; and (b) No other control, telltale, 

indicator, identifier or source of illumination 

appears between the identifier and the telltale, 

indicator, or control that the identifier identifies.’’ 

B. Multi-Function ESC Controls 

The Alliance/AIAM petitioned for 

clarification of paragraphs S5.4.2 and 

S5.4.3 regarding a control switch or 

button that combines several functions, 

which we will call a ‘‘multi-function’’ 

control for simplicity.14 For 

background, paragraph S5.4.2 requires 

that an ESC control whose only purpose 

is to disable the ESC system or place it 

in a mode in which it no longer satisfies 

the performance requirements 15 be 

labeled either with the ESC symbol plus 

the word ‘‘Off’’ or the phrase ‘‘ESC Off.’’ 

The ‘‘ESC Off’’ telltale must also 

illuminate when ESC is in a state in 

which it no longer satisfies the 

performance requirements. Paragraph 

S5.4.3 creates an exception for a control 

primarily for another function, such as 

a four-wheel drive low-range transfer 

case, that does not specifically control 

the ESC system directly, but has the 

ancillary effect of turning off ESC in low 

range. Such a control need not be 

labeled an ‘‘ESC Off’’ control, but the 

‘‘ESC Off’’ telltale must still illuminate 

if ESC is put in a state in which it no 

longer satisfies the performance 

requirements. 

The Alliance/AIAM offered the 

example of a multi-function control that 

could be used to turn ESC off or on, but 

could also be used to turn traction 

control off and to select an ESC 

‘‘performance mode.’’ Because such a 

control could be seen as neither a 

control whose only purpose is to disable 

ESC, nor a control for another system 

with an ancillary effect, petitioners 

requested that the agency clarify that 

multi-function controls like the one 

described are not prohibited by FMVSS 

No. 126. Figure 1 below shows a rotary 

multi-function control (this example 

was provided in the petition). 

Agency response: We are granting the 

petition to clarify S5.4.3, although we 

note that this question was already 

answered in the affirmative in the 

agency’s response to the GM request for 

interpretation. FMVSS No. 126 does not 

prohibit multi-function ESC controls 

that combine the control whose only 

purpose is to disable the ESC system 

with controls used for other purposes. 

Paragraph S5.4 specifically allows 

controls whose sole purpose is to 

disable ESC and establishes various 

requirements for them. The only reason 

that the standard distinguishes between 

these controls used only for disabling 

ESC from those used to control systems 

with an ancillary effect on ESC is to 

express the labeling requirements for 

the control symbols. The multi-function 

control example presented by the 

petition combines several controls in a 

single piece of hardware: one control 

whose only purpose is to disable ESC, 

one unregulated control for the traction 

control system, and another control that 

places the ESC system in an 

intermediate ‘‘sport’’ or ‘‘performance’’ 

mode.’’ 

In the rotary multi-function control 

example of Figure 1, the function within 

the control that disables ESC, because 

its only purpose is to disable ESC, 

would be required to be identified using 

the symbol or text specified in FMVSS 

No. 101 for ‘‘ESC Off’’ (effective 

September 1, 2011) on or adjacent to 

that part of the control. We would not 

consider the precise example given by 

the Alliance/AIAM petition as satisfying 

FMVSS No. 101’s requirement that the 

‘‘ESC Off’’ label (‘‘identifier’’) be 

adjacent to the control it identifies, 

because the telltale lamp is located 

between the two.16 However, this 

problem could be solved by moving the 

lamp to the other side of the label. 

FMVSS No. 126 does not specify 

requirements for the ‘‘TC off’’ function 

in the example, nor for the ‘‘ESC 

Performance mode’’ function, unless 

that function within the control places 

the ESC system in a mode in which it 

no longer satisfies the standard’s 

performance requirements. If it did, it 

would be considered an ‘‘ESC Off’’ 

control (because it is a control whose 

purpose is to place the ESC system in 

a mode in which it no longer satisfies 

the performance requirements) and 

would also have to be labeled 

accordingly. 

The agency notes that in analyzing the 

applicability of the labeling requirement 

to the rotary multi-function control 

identified by the petition, we 

additionally considered other types of 

multi-function controls. For example, 

we considered toggle buttons which 

must be pressed repeatedly in order to 

cycle through multiple functions 

(including ESC Off), as well as controls 

used to navigate through multiple 

functions (including ESC Off) displayed 

in an information center. Just as for 

rotary multi-function controls, these 

other multi-function controls must be 

labeled with ‘‘ESC Off’’ if they contain 

a function whose only purpose is to 

disable ESC or place it in a mode in 

which it no longer satisfies the 

performance requirements. NHTSA 

reiterates that ESC Off controls, 

regardless of whether they are contained 

within a multi-function control, must be 

labeled with ‘‘ESC Off.’’ We believe that 

this is necessary for the safety of the 

driver, and to discourage the driver from 

turning ESC off unless it is absolutely 

necessary. Unlike rotary controls, 

however, with a toggle button or a single 

button or switch for an information 

center, there is no obvious location for 

the ‘‘ESC Off’’ label. In these situations, 

we nevertheless require the control to be 

labeled with ‘‘ESC Off,’’ even if it also 

contains additional labels that the 

manufacturer believes are necessary to 

identify the other functions it contains. 


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Federal Register / Vol. 73, No. 184 / Monday, September 22, 2008 / Rules and Regulations 54531 

17 72 FR 17271 (Apr. 6, 2007). 

The Alliance/AIAM also petitioned 

NHTSA to remove the word ‘‘only’’ 

from S5.4 and S5.4.2 of the regulatory 

text in order to allow multi-function 

controls. The agency is denying this 

aspect of the petition. S5.4 and S5.4.2 

simply permit ESC Off controls and 

require them to be labeled with ‘‘ESC 

Off.’’ Paragraph S5.4 has been amended 

to state that ‘‘ESC Off’’ controls may be 

included in multi-function controls. 

Therefore, we do not believe that 

removing the word ‘‘only’’ from the 

regulatory text is necessary. 

C. ‘‘ESC Off’’ Control Labeling 

As explained in this response to 

petitions and in the final rule, paragraph 

S5.4.2 requires that an ESC control 

whose only purpose is to disable the 

ESC system or place it in a mode in 

which it no longer satisfies the 

performance requirements, be labeled 

with either the ESC symbol plus the 

word ‘‘Off’’ or the phrase ‘‘ESC Off.’’ 

NHTSA believes that labeling these 

controls with ‘‘ESC Off’’ is necessary to 

ensure that drivers clearly understand 

that they may lose the safety benefits of 

ESC by using this control. 

The Alliance/AIAM petitioned 

NHTSA to change the control labeling 

requirements in the final rule to require 

simply the label ‘‘ESC’’ rather than the 

label ‘‘ESC Off.’’ Petitioners argued that 

requiring the word ‘‘Off’’ on even 

dedicated controls ‘‘will result in 

customer confusion and 

dissatisfaction.’’ Petitioners also 

asserted that ‘‘labeling a control with 

’Off’ is unprecedented and inconsistent 

with the way that similar controls are 

handled in various Federal Motor 

Vehicle Safety Standards.’’ Therefore, 

they requested that the relevant 

provisions and table sections in FMVSS 

No. 101 and FMVSS No. 126 be revised 

to make the current ESC malfunction 

symbol (that is, the ESC symbol alone or 

the letters ‘‘ESC’’ alone) also the 

identifier for a control to be called the 

‘‘ESC control’’ that could turn ESC off 

as one of its functions. The changes 

would retain the current ESC Off 

symbol as an identifier for the ‘‘ESC 

Off’’ telltale, but not for the control. 

Agency response: We are denying this 

petition, because as expressed 

repeatedly, we believe that labeling a 

control that disables ESC with ‘‘ESC 

Off’’ is beneficial for safety and for 

driver comprehension. The final rule 

permitted ESC to be turned off by the 

driver only because there are rare 

circumstances in which turning ESC off 

could be advantageous. It did not 

require manufacturers to include an ESC 

Off control. NHTSA’s primary concern 

in the final rule was to minimize the 

possibility of a driver turning ESC off 

accidentally, or being otherwise unsure 

of the ESC system’s status. The control 

was required to be labeled ‘‘ESC Off’’ to 

discourage drivers from touching the 

control unless they truly wanted to 

disable the system. NHTSA remains 

concerned that using simply the ESC 

symbol or letters ‘‘ESC’’ for these 

controls could lead drivers to think they 

had to use the control to select ESC 

operation, when they would almost 

always be safer not touching the control 

at all. 

The Alliance/AIAM petition offered 

no new evidence that the current 

requirements for labeling the ESC Off 

control are in any way more confusing 

or less effective in fulfilling the agency’s 

goal of discouraging drivers from 

casually or unintentionally disabling 

ESC than their suggested alternatives. 

Consequently, we are denying this 

petition. 

D. Disconnection of the Optional ‘‘ESC 

Off’’ Control 

In the final rule, NHTSA stated that 

although it would consider a 

disconnection of the ‘‘ESC Off’’ control 

to constitute a malfunction suitable for 

simulation under the standard, because 

it directly impacts ESC operability, until 

the end of the phase-in period we would 

allow manufacturers to not illuminate 

the ESC malfunction telltale for 

disconnection of the ‘‘ESC Off’’ 

control.17 At the time, this was 

permitted in order to accommodate the 

current lack of standardization of ESC 

controls and displays, which would be 

resolved by the end of the phase-in 

period. The Alliance/AIAM petitioned 

NHTSA to clarify that there is no 

requirement to illuminate the 

malfunction telltale when the ESC 

control is disconnected, and in doing so, 

to remove the exclusion in S5.3.9 that 

states that ‘‘a disconnection of the ‘‘ESC 

Off’’ control need not illuminate the 

ESC malfunction telltale.’’ S5.3.9 

currently reads as follows: 

S5.3.9 Prior to September 1, 2011, a 

disconnection of the power to the ESC 

electronic control unit may be indicated by 

the ABS malfunction telltale instead of the 

ESC malfunction telltale and a disconnection 

of the ‘‘ESC Off’’ control need not illuminate 

the ESC malfunction telltale. 

The Alliance/AIAM argued that 

because S5.3.9 provides an exception 

for vehicles built before September 1, 

2011, a requirement is implied after that 

date. Petitioners further argued that it is 

neither necessary nor appropriate to 

require the malfunction telltale to 

illuminate when the disable control is 

disconnected, because as a practical 

matter, a fault in the optional ESC Off 

control will not affect the ability of the 

ESC system to function. Thus, the 

Alliance/AIAM requested that NHTSA 

remove the last clause of S5.3.9, and 

simply clarify in the preamble that a 

disconnection of the ‘‘ESC Off’’ control 

need not illuminate the ESC 

malfunction telltale. 

Agency response: We are granting this 

petition, because it appears that no 

vehicles currently have the means to 

detect an ESC Off switch disconnection, 

and because upon further consideration 

we believe that an identical safety level 

will be maintained. Generally speaking, 

when an ESC Off switch becomes 

disconnected, the result will be 

equivalent to having no ESC Off control 

at all—which would frequently be 

preferable from a safety perspective. The 

driver would only be aware of the 

disconnection if he or she attempted to 

use the control to disable ESC and the 

‘‘ESC Off’’ telltale did not illuminate. 

The only circumstance that NHTSA can 

imagine in which a disconnection of the 

ESC Off control would be different than 

simply not having an ESC Off control 

would be if the control became 

disconnected after it had been used to 

turn off the system, which would affect 

the control signal to turn ESC back on 

and could thus conceivably create a 

safety risk. We believe, however, that 

this would be a very rare occurrence. 

Moreover, if the switch is disconnected 

while the ESC is off, the driver retains 

the warning of the status indicator, and 

ESC will be automatically restored as 

soon as the vehicle is restarted, because 

that function is controlled by the ESC’s 

electronic control unit, which is not 

affected by the switch’s disconnection. 

Thus, we clarify that ESC Off switch 

disconnections that do not affect ESC 

operation other than in the narrow 

circumstance described above would 

not be considered an ESC system 

malfunction severe enough for a telltale 

warning. We are revising paragraph 

S5.3.9 to remove the text in question. 

E. Automatic Return of ESC System to 

‘‘On’’ Mode for Each Ignition Cycle 

The final rule included an ignition 

cycle default requirement in paragraph 

S5.4.1, which required the ESC system 

to return to a mode that satisfied the 

equipment and performance 

requirements ‘‘at the initiation of each 

new ignition cycle, regardless of what 

mode the driver had previously 

selected.’’ If the system had multiple 

modes that satisfied the requirements, 

‘‘the default mode must be the mode 

that satisfies the performance 

requirements * * * by the greatest 


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54532 Federal Register / Vol. 73, No. 184 / Monday, September 22, 2008 / Rules and Regulations 

18By way of background, high-range 4WD with 

locked center differential is designed for driving in 

snow or on unpaved roads, where there is no 

particular need to drive slowly, so it is not speedlimited by low gear ratios. ‘‘Locked center 

differential’’ means that the drive gears at the front 

and rear axles are locked together, so they do not 

move independently like they ordinarily would. 

With a locked center differential, tires that would 

have no traction (when, for example, passing over 

an ice patch) are able to ‘‘slip’’ due to the locked 

axles and continue moving, so the vehicle avoids 

getting stuck. Tire slippage can be helpful when a 

driver is negotiating slippery surfaces like packed 

snow, but it creates large forces and causes rapid 

tire wear when the tires are forced to slip on dry 

pavement, because the axles are essentially fighting 

one another. Thus, vehicles are capable of driving 

on regular dry pavement in high-range 4WD with 

locked center differential, but the driver would 

probably not want to remain in that mode for long. 

margin.’’ However, the final rule 

included an exception for vehicles from 

returning to the default mode if the 

mode previously selected by the driver 

‘‘is specifically for enhanced traction 

during low-speed, off-road driving and 

is entered by the driver using a 

mechanical control that cannot be 

automatically reset electrically.’’ This 

exception was included in response to 

manufacturer comments that certain 

low-range, speed-limited 4-wheel drive 

modes were accessed via use of a 

mechanical lever, and there was no way 

to move the lever back automatically to 

return to the default mode at the start of 

each new ignition cycle. Additionally, 

the agency agreed that there could be a 

safety risk if, for example, a vehicle in 

4-wheel drive driving up a steep hill 

suddenly stalled and had to be restarted, 

but returned to 2-wheel drive because of 

the ignition cycle default requirement 

which required that the default mode be 

the one that satisfied the performance 

requirements by the greatest margin. 

The Alliance/AIAM petitioned 

NHTSA to change the word 

‘‘mechanical’’ in S5.4.1 to ‘‘manual,’’ 

essentially broadening the exclusion 

from the key cycle automatic ESC 

reactivation requirement for low-speed 

off-road modes that are selected by the 

driver using an electronic control. 

Petitioners argued that the safety 

concerns (i.e., preventing ESC from 

reactivating when it could be harmful, 

as when the vehicle is stuck in snow or 

negotiating rugged or steep terrain) 

applied the same for electricallyselected modes as for mechanicallyselected modes. However, petitioners 

subsequently submitted revised 

recommendations on this issue, 

focusing not only on the ‘‘mechanical’’ 

versus ‘‘manual’’ distinction, but also 

more broadly on how the ignition cycle 

default requirement should be applied 

for maximum safety when a vehicle 

offers multiple drive configuration 

options (like 2-wheel drive, low-range 4- 

wheel drive, high-range 4-wheel drive 

with locked center differential, etc.). 

The discussion below addresses the 

various aspects of this issue. 

Broader exclusion of low-speed offroad modes from ignition cycle 

reactivation requirement: 

The Alliance/AIAM petitioned for a 

broader exception in S5.4.1 for all lowspeed off-road modes, including those 

induced by non-mechanical driverselectable controls like touch screens or 

push buttons. Petitioners argued that 

safety concerns are still relevant for 

these modes just as they are for the 

agency’s current exclusion for 

mechanically-selected low-speed offroad modes. For example, whether a 

vehicle is placed in an alternate mode 

mechanically or by pressing a button on 

a touch screen, if the mode is used for 

driving up steep hills or navigating 

rough terrain, requiring it to revert to a 

mode inappropriate for those conditions 

if the vehicle stalls and must be 

restarted could create hazards for the 

driver. 

Agency response: We are granting this 

petition by tying S5.4.1’s exception 

directly to the low-range configuration 

of 4WD vehicles actually designed for 

off-road capability, and defining 4WD 

low-range configuration to specify 

minimum low-range gear reduction to 

assure that the vehicle is limited to lowspeed operation. NHTSA agrees that the 

safety issue raised by petitioners is 

valid, and believes that the safety 

concerns associated with allowing a 

vehicle to remain in low-range 4WD 

upon restart should be minimized, since 

the vehicle will be limited to low 

speeds. 

‘‘Opposition’’ of S5.2’s two 

requirements of stability and 

responsiveness and ‘‘by the greatest 

margin’’ requirement for different drive 

configurations: 

The Alliance/AIAM petitioned to 

revise the exception language of S5.4.1 

that provides that the default mode to 

which ESC must return must be ‘‘the 

mode that satisfies the performance 

requirements of S5.2 by the greatest 

margin.’’ Petitioners argued that S5.2’s 

two requirements of stability and 

responsiveness ‘‘are often in opposition 

with each other.’’ This is because 

increasing ESC intervention may 

increase the compliance margin for the 

stability requirement, but also reduce 

the margin for responsiveness, while the 

opposite will happen when ESC 

intervention is decreased, as in the 

various ‘‘ESC performance modes’’ that 

petitioners offer on their vehicles. 

Petitioners had no specific request on 

this issue, but appear to have 

incorporated this concern into other 

requests for changes to regulatory text. 

Also on the issue of the S5.2 reference 

in S5.4.1, the Alliance/AIAM requested 

that the agency not require vehicles in 

high-range 4WD locked-differential 

modes to return automatically to the 

ESC mode with the greatest margin of 

compliance with S5.2’s requirements. 

Petitioners argued that this requirement 

complicates compliance, and thus 

potential credit earnings, for vehicles 

with a high-range 4WD mode with a 

locked center differential, because ESC 

algorithms must be adjusted to 

accommodate those modes, so that they 

intervene differently in those contexts. 

Thus, even if the ESC system could 

meet S5.2 in these modes, it might not 

meet it by the greatest margin as 

required by S5.4.1, so it would have to 

be shifted back to 2WD. 

Petitioners argued that this result is a 

problem for several reasons. First, none 

of the systems on vehicles with highrange 4WD modes with locked center 

differential are currently capable of 

automatically switching back to 2WD 

mode (and unlocking the center 

differential) with the ignition cycle 

alone. Second, as for all restarts in a 

new drive configuration mode, it can 

conceivably create a safety hazard or 

severe inconvenience for the driver—a 

vehicle in 4WD may stall in mud or 

snow and end up deeply dug in before 

the driver realizes that it restarted in 

2WD. And third, as addressed in the 

final rule, vehicles that use mechanical 

controls to access the high-range 4WD 

mode with locked center differential 

have no practical way of reverting 

automatically to 2WD at a new ignition 

cycle. 

Agency response: We are granting 

these requests by revising S5.4.1’s 

default mode requirement to refer to 

ESC modes within the same drive 

configuration mode, and by removing 

the ‘‘by the greatest margin’’ 

requirement. Unlike in the case of lowrange 4WD with a locked center 

differential, ESC continues to operate in 

the corresponding high-range mode. 

However, because 4WD vehicles are not 

designed to be driven on dry pavement 

with a locked center differential,18 there 

is little information about their results 

in the FMVSS No. 126 performance test, 

which is conducted on dry pavement. It 

is possible that vehicles may pass the 

test in 4WD with a locked center 

differential, but the test is much more 

representative of what the vehicle 

encounters when operated in 2WD 

mode. If the vehicle does not pass the 

test in 4WD with a locked center 

differential, it would be required to 


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Federal Register / Vol. 73, No. 184 / Monday, September 22, 2008 / Rules and Regulations 54533 

19 Docket No. NHTSA–2007–27662–12. 

revert automatically to 2WD mode at a 

new ignition cycle. 

However, NHTSA realizes that this 

result would not be beneficial in some 

of the situations described by 

petitioners, such as when the vehicle is 

operating in loose sand or snow and 

could get dug in by restarting in 2WD. 

Additionally, we realize that vehicles 

with mechanical controls cannot 

automatically revert to another mode 

when the ignition is cycled. It was not 

the agency’s intent to require these 

results. Moreover, as a practical matter, 

the ESC performance test is conducted 

with the vehicle coasting, so a locked 

center differential will cause 

considerable longitudinal wheel slip 

and slow the vehicle quickly during the 

test, aiding its stability. For these 

reasons, NHTSA is revising S5.4.1’s 

default mode requirement to refer to 

ESC modes within the same drive 

configuration mode. 

However, because ESC can remain 

operative in high-range 4WD with 

locked center differential, and may be 

able to meet FMVSS No. 126’s stability 

performance requirements, we are 

specifying that a vehicle in high-range 

4WD with locked center differential 

need not revert to 2WD with the next 

ignition cycle if it can meet the stability 

performance requirements of S5.2.1 and 

S5.2.2. As stated, locking the vehicle’s 

center differential will likely result in 

increased understeer. This will have the 

inherent effect of improving lateral 

stability, but at the expense of some 

responsiveness degradation. However, 

in the driving situations appropriate for 

use of the high-range 4-wheel drive 

configuration with locked center 

differential mode (i.e., snow- or icecovered roads, or on unpaved roads), we 

believe the benefits of improved lateral 

stability outweigh the ancillary effect of 

reduced responsiveness. Therefore, for 

vehicles placed in a high-range 4WD 

with locked center differential mode, we 

are only requiring the ESC system to 

revert at each ignition cycle to a mode 

that can meet the stability performance 

requirements. We believe that this 

solution resolves petitioners’ concerns 

about vehicles not being able to meet 

both stability and responsiveness 

requirements in high-range 4WD with 

locked center differential. 

Additionally, we are removing the 

sentence at the end of S5.4.1 that 

includes the ‘‘by the greatest margin’’ 

language, and are instead specifying that 

the default mode must be the 

‘‘manufacturer’s original’’ default mode. 

The ‘‘by the greatest margin’’ language 

was originally included in FMVSS No. 

126 to ensure that the ignition cycle 

default mode was always the mode that 

provided the maximum level of safety, 

particularly if the ESC system included 

modes that were more ‘‘sporty’’ and had 

a lower compliance margin, even if they 

met the performance requirements. 

However, upon further consideration, 

the agency believes it is highly unlikely 

that manufacturers would choose to 

offer ESC systems with default modes 

that were not the modes with the 

highest compliance margins. Therefore, 

we are simply requiring that vehicles 

return to the manufacturer’s original 

default mode at the next ignition cycle. 

By ‘‘manufacturer’s original default 

mode,’’ the agency means the basic ESC 

mode for the drive configuration, that is 

not a driver-selectable mode, that meets 

the final rule’s performance 

requirements (or in the case of highrange 4WD with locked center 

differential, that meets the stability 

performance requirements). 

Request to allow technical 

documentation in lieu of meeting 

performance requirements: 

In their revised recommendations the 

Alliance/AIAM also argued that ESC 

modes induced by selecting high-range 

4WD with locked center differential 

should not be required to satisfy S5.1 

and S5.2 at the next ignition cycle as 

called for by S5.4.1. Petitioners 

requested that NHTSA instead require 

manufacturers to document, per the 

‘‘ESC System Technical 

Documentation’’ provision of S5.6, that 

a control algorithm appropriate to highrange 4WD operation with a locked 

center differential is operational above 

20 km/h in that drive configuration. 

With such documentation, the vehicle 

would not be required to change ESC 

modes or drive configuration at the 

initiation of a new ignition cycle. 

Agency response: We are denying this 

request. The situation presented by 

high-range 4WD with locked center 

differential is not suited to a 

documentation solution in the way that 

understeer mitigation is, which is what 

S5.6 was intended to address. Unlike 

understeer mitigation, it is possible to 

perform the test established by the 

standard even with the vehicle in highrange 4WD with locked center 

differential, and the test procedure 

should still be useful to demonstrate 

objectively that ESC remains functional 

in this drive configuration without the 

need to rely on documentation, as 

discussed above. The agency notes that 

a docket submission by Chrysler on 

September 26, 2007 supports the idea 

that ESC modes available with a locked 

center differential should be expected to 

satisfy the stability criteria (S5.2.1 and 

S5.2.2) of the ESC test used in FMVSS 

No. 126.19

We do not expect that vehicles tested 

with a locked center differential will 

meet the responsiveness criterion 

(S5.2.3) in a similar manner. However, 

responsiveness on a high coefficient of 

friction surface in a mode with the 

center differential locked is not relevant 

to evaluating the operation of ESC. Any 

lack of responsiveness in the test would 

not be the result of ESC operation, but 

rather the consequence of the front and 

rear drive axles creating high opposing 

forces, which cannot be resolved by tire 

slippage on dry pavement the way they 

would be on a surface like packed snow. 

As discussed above, the agency believes 

that in the case of vehicles in high-range 

4WD with locked center differential, 

which are used primarily for safe 

handling on slippery surfaces like 

packed snow and dirt, vehicle stability 

is a more important property to 

demonstrate than vehicle 

responsiveness. Thus, manufacturers 

would have no obligation to ensure that 

vehicles in this drive configuration 

could meet S5.2.3. 

Whether the ‘‘ESC Off’’ indicator must 

be illuminated for driver selection of 

alternate operating modes: 

Finally, on the subject of driverselectable operating modes, the 

Alliance/AIAM requested that NHTSA 

remove the requirement in S5.4.3 that 

the ‘‘ESC Off’’ indicator be illuminated 

whenever a driver-selectable operating 

mode renders the vehicle incapable of 

meeting the performance requirements 

of S5.2. Petitioners expressed concern 

that, if putting the vehicle in 4WD 

illuminates the ESC Off telltale, drivers 

might be discouraged from using 4WD 

because they might think that ESC is not 

working even though it has been 

optimized for that mode, or might seek 

unnecessary vehicle service for what 

appears to be a malfunction in their ESC 

system. 

Agency response: This issue is 

addressed by the agency’s revision of 

S5.4.1 to require vehicles in particular 

4WD modes to meet only the stability 

performance requirements of S5.2.1 and 

S5.2.2 and not the responsiveness 

requirement of S5.2.3 as well. If the ESC 

mode for a high-range 4WD with locked 

center differential drive configuration is 

capable of satisfying the stability 

criteria, it should not be considered as 

turning ESC off. Thus, there would be 

no reason to illuminate the ESC Off 

telltale. NHTSA is revising S5.4.4 and 

S5.5.4 to clarify this point. 

The table below summarizes the 

ignition cycle default requirements for 


ebenthall on PROD1PC60 with RULES
54534 Federal Register / Vol. 73, No. 184 / Monday, September 22, 2008 / Rules and Regulations 

20 Id., at 17264. 

21Alliance petition at 5. 

22 Id. at 6. 

23 Docket No. NHTSA–2007–27662–10, at 8. 

manually-activated ESC modes in different drive configurations and the 

required ESC Off telltale response: 

SAMPLE OF IGNITION CYCLE DEFAULT REQUIREMENTS OF S5.4.1 WITH TELLTALE STATUS REQUIREMENTS (LIST IS NOT

ALL-INCLUSIVE) 

Drive configuration Mode 

Meets stability & 

responsiveness 

requirements 

‘‘Off 

Telltale’’ 

status 

ESC default setting (ignition cycle) 

‘‘Off 

Telltale’’ 

status 

2WD (3 selections 

avail.).

2WD .......................... yes ............................ off ............ 2WD default meets stability and responsiveness requirements.off. 

Performance 1 .......... yes ............................ off ............ 2WD default meets stability and responsiveness requirements.off. 

Performance 2 .......... no .............................. on ............ 2WD default meets stability and responsiveness requirements.off. 

AWD/4WD Auto (1 selection avail.).AWD/4WD Auto ........ no (neither) ............... on ............ Default to some mode that meets stability 

and responsiveness requirements.

off. 

AWD/4WD Auto ........ no (stability—yes) (responsiveness—no).on ............ Default to some mode that meets stability 

and responsiveness requirements.

off. 

AWD/4WD Auto ........ yes ............................ off ............ Default to some mode that meets stability 

and responsiveness requirements.

off. 

4WD Hi Locked (1 selection avail.).Locked ...................... no (neither) ............... on ............ Default to some mode that meets stability 

requirements.

off. 

Locked ...................... no (stability—yes) (responsiveness—no).off ............ Default to some mode that meets stability 

requirements.

off. 

Locked ...................... yes (both) .................. off ............ Default to some mode that meets stability 

requirements.

off. 

4WD Low .................... Low ........................... no .............................. on ............ Normal low ................................................... on. 

Any Above .................. ‘‘ESC OFF’’ Control 

activated.

no .............................. on ............ Default to applicable mode within existing 

drive configuration that meets appropriate 

performance requirements.

off. 

F. Low-Speed Threshold for ESC 

Operation 

The final rule, in both the paragraph 

S4 definition of an ESC system and in 

paragraph S5.1.2 as part of the 

equipment requirements, requires ESC 

to operate at all speeds above 15 km/h 

(9.3 mph). NHTSA included a lowspeed threshold for ESC operation as a 

result of comments to the NPRM. 15 

km/h (9.3 mph) was chosen largely 

because that speed was the typical 

threshold for ABS operation, and ABS 

shares a number of components with 

ESC.20

The Alliance and AIAM petitioned 

the agency to remove the low-speed 

threshold in the ESC system definition 

of paragraph S4, and to allow the 

manufacturer to determine the lowspeed threshold and initialization 

period and conditions until the end of 

the phase-in period in paragraph S5.1.2. 

The Alliance/AIAM argued that ‘‘Many 

current vehicles have a design cut-off 

threshold speed higher than the 15 km/ 

h (9.3 mph) specified in FMVSS 126,’’ 

and that the different initialization 

periods required by different ESC 

systems may result in some systems not 

working until the vehicle has reached 

32 km/h (20 mph).21 Petitioners further 

argued that the 15 km/h (9.3 mph) lowspeed threshold would interfere with 

manufacturers’ ability to accrue carryforward and phase-in credits.22

In a supplemental document to its 

petition for reconsideration, the 

Alliance/AIAM requested a specific 

low-speed threshold of 20 km/h (12.4 

mph), but also that the agency still 

allow the manufacturer to determine the 

initialization period and conditions 

before the end of the phase-in period in 

S5.1.2.23 The petitioners stated that they 

had conducted additional research, and 

determined that their ‘‘member 

vehicles’’ could manage this revised 

low-speed threshold recommendation. 

Agency response: We are granting this 

petition in part, although we are not 

adopting the exact language offered by 

the Alliance/AIAM. Regarding the lowspeed threshold, the original proposed 

language of S4 as contained in the 

NPRM stated that ESC must be 

operational ‘‘over the full speed range of 

the vehicle (except below a low-speed 

threshold where loss of control is 

unlikely).’’ As stated above, NHTSA 

included a specific speed designation 

for the low-speed threshold in the final 

rule in response to comments, but our 

goal has always been to avoid requiring 

ESC to operate at speeds below which 

loss of control is not a significant 

concern. NHTSA agrees that a lowspeed threshold of 20 km/h (12.4 mph), 

consistent with the apparent capabilities 

of most of the existing ESC-equipped 

fleet, constitutes a limit for ESC 

operation below which loss of control is 

unlikely. Thus, the low-speed threshold 

is revised accordingly in S4 and S5.1.2 

of the regulatory text. 

Additionally, the Alliance/AIAM 

petition requested that NHTSA allow 

manufacturers to determine their own 

initialization periods until the end of 

the phase-in period. NHTSA is denying 

this petition because we are revising S4 

and S5.1.2 to clarify that ESC need not 

be operational during system 

initialization. This point was already 

made in our letter of interpretation to 

GM, but we believe that this minor 

clarification should also be made to the 

regulatory text to avoid any further 

confusion. 

G. Fault Detection and Cancellation 

Test Procedures 

The need of the ESC system to 

initialize affects provisions of FMVSS 

No. 126 in addition to the definition of 

ESC system in S4 and the description of 

the required equipment in S5.1.2. For 

example, if the system has not 

completed initialization and is not yet 

operational, it likely cannot detect 

malfunctions in the system—a problem 

which relates to the requirements for 

ESC malfunction telltales and for their 

testing. Paragraph S5.3 establishes the 

requirement for a malfunction telltale 


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24This point was also answered in the GM letter 

of interpretation. 

25 72 FR 17236, 17239 (Apr. 6, 2007). 26AAJ petition at 1, available at Docket No. 

NHTSA–2007–27662, item 6. 27 Id. at 2. 28See 72 FR 17236 at 17253, 17258 (Apr. 6, 

2007). 29The final rule contains a much more thorough 

description of how ESC uses yaw stability control. 

See id. at 17243–44 (Apr. 6, 2007). 

for ESC systems and specifies a number 

of attributes for the telltale. Paragraph 

S7.10 of the standard sets forth a test 

procedure for the malfunction telltale, 

and S7.10.2 accounts for the need for 

the vehicle to be driven for up to two 

minutes to allow the ESC system to 

initialize and conduct diagnostics in 

order for it to be able to detect a 

malfunction. 

The Alliance/AIAM petition asked the 

agency to clarify that the initialization 

procedure necessary for the system to 

find a malfunction and illuminate the 

telltale (in S7.10.2) is also applied to the 

vehicle when the telltale is tested for 

extinguishment after the fault is 

corrected (S7.10.4).24 Petitioners further 

requested that the ESC malfunction 

telltale test procedure be referenced in 

S5.3 to assure that the test procedures 

are reflected in the ESC malfunction 

requirements section of the standard. 

Additionally, petitioners argued that 

most current ESC systems require a 

brake application in order to detect 

some ESC system malfunctions, and 

petitioned the agency to include a 

requirement for a brake application in 

the initialization procedure. 

Agency response: We are granting 

these requests. As discussed above, the 

agency did not intend to require ESC to 

operate when it is still initializing. For 

a system that needs to initialize before 

it can discover a malfunction and 

illuminate the malfunction telltale, like 

the majority of the ESC systems 

currently on the market, the system 

cannot discover that the malfunction is 

no longer present and extinguish the 

telltale without completing the same 

initialization procedure. Therefore, the 

agency is including the same 

initialization procedure in S7.10.4 as is 

already specified in S7.10.2. Similarly, 

to clarify that the vehicle must be 

initialized before testing begins, we are 

including the same initialization 

procedure in S6.3.1, as part of the test 

conditions. Additionally, after 

considering the petitions, we consider 

the inclusion of a brake application in 

the initialization procedure 

requirements to be a very minor 

amendment. We are revising the 

regulatory text to reflect these changes. 

In considering these requests, the 

agency also noted that S7.10.3 of the 

ESC malfunction detection procedure 

requires that the telltale illuminate 

immediately when the engine is 

restarted following an ignition cycle in 

which a malfunction was detected. In 

other words, the ESC system must hold 

the existence of a malfunction in 

memory, rather than rediscovering it 

with the new ignition cycle. Some ESC 

systems currently on the market must 

initialize before they can identify some 

specific types of malfunctions, which 

means that they are unable to hold the 

existence of a malfunction in memory. 

For these systems, we recognize that 

this requirement simply cannot be met, 

although it may be possible for other 

ESC systems that do not need to 

initialize to recognize a malfunction. In 

order to be consistent with the other 

provisions of S7.10, the agency is 

making S7.10.3 effective at the end of 

the phase-in, and will revise the 

regulatory text accordingly. However, 

we note that after the phase-in, all ESC 

systems must be able to hold 

malfunctions in memory and illuminate 

the malfunction telltale immediately 

upon engine restart if the malfunction 

still exists. 

H. Effective Dates for Amended 

Procedures and Requirements 

The Alliance/AIAM petitioned that 

the revisions they requested to the final 

rule be made retroactive to June 5, 2007 

(the effective date of the final rule), so 

that carry-forward credits for complying 

vehicles built after that date could be 

used by manufacturers in satisfying the 

phase-in schedule for that standard. 

Agency response: We are granting this 

petition, to the extent to which we are 

making the revisions requested in the 

petition. In the April 2007 final rule, 

NHTSA provided that manufacturers 

may earn credits for vehicles 

manufactured on or after June 5, 2007, 

that comply with the new ESC standard. 

In today’s final rule, we are making a 

number of minor amendments to that 

standard, many of which are of a 

clarifying nature and none of which 

affect safety benefits. 

Given our decision in the April 2007 

final rule to permit manufacturers to 

earn credits for complying vehicles 

manufactured on or after June 5, 2007 

and given the minor nature of today’s 

amendments, it is our position that 

manufacturers may earn credits for 

vehicles manufactured on or after that 

date if the vehicles comply with the 

standard as amended by today’s rule. 

We believe it is sufficient to make that 

point in this preamble. 

We are making this final rule effective 

30 days after publication. The 

amendments do not impose new 

requirements but instead provide 

clarification and additional flexibility in 

appropriate areas. We accordingly find 

good cause for making the rule effective 

in this timeframe. 

I. Inclusion of Roll Stability Control in 

the Scope of the Final Rule 

AAJ petitioned NHTSA to reconsider 

its decision not to address the need for 

roll stability control in the final rule. It 

argued that the agency’s statement in 

the final rule that ‘‘There is currently an 

insufficient body of data to judge the 

efficacy of [these] systems’’ 25 was 

incorrect, because ‘‘the agency may be 

able to obtain the appropriate 

information through its authority to 

institute a rulemaking or to issue a 

subpoena.’’ 26 It also argued that if 

NHTSA declines to reconsider the final 

ESC rule on this basis, ‘‘the agency must 

establish a rulemaking to address RSC 

immediately,’’ because doing so ‘‘would 

develop the statistics to demonstrate the 

efficacy of such systems.’’ 27

Agency response: We are denying this 

petition. While we may consider 

establishing requirements for roll 

stability control in the future, we 

reiterate that insufficient data currently 

exists for the agency to establish such 

requirements as part of FMVSS No. 126, 

as we discussed at length in the final 

rule.28 In explaining the basis of our 

decision, we will first explain the 

difference between the yaw stability 

control that ESC produces and roll 

stability control, and then explain 

briefly why we did not include roll 

stability control as part of the ESC final 

rule. 

‘‘Yaw stability control’’ is the 

technical term for the action of ESC 

which keeps the vehicle pointed in the 

direction the driver is steering through 

the automatic reduction of engine power 

and automatic application of braking at 

individual wheels to turn the vehicle, in 

order to help drivers avoid imminent 

loss-of-control situations.29 ‘‘Roll 

stability control,’’ in contrast, prevents 

vehicle tip-up by sensing the vehicle’s 

body roll angle and applying a high 

brake force to the outside front wheel to 

straighten the vehicle’s path and reduce 

lateral acceleration if the roll angle 

indicates probable tip-up. Put 

differently, yaw stability control is 

based on the vehicle’s sensing loss of 

control on the horizontal plane, and roll 

stability control is based on the 

vehicle’s sensing loss of control on the 

vertical plane, although both use brake 

forces at individual wheels to make the 

path correction. Additionally, yaw 


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30 72 FR 17236, 17258 (Apr. 6, 2007). 

31 72 FR 17236, 17258 (Apr. 6, 2007). 

32See 49 CFR § 553.35, ‘‘Petitions for 

Reconsideration,’’ paragraph (a), which states that 

‘‘Any interested person may petition the 

Administrator for reconsideration of any rule issued 

under this part. * * * The petition must contain a 

brief statement of the compliant and an explanation 

as to why compliance with the rule is not 

practicable, is unreasonable, or is not in the public 

interest.’’ (Emphasis added.) 

33See the ‘‘Federalism’’ discussion at 72 FR 

17300–01 (Apr. 6, 2007). 

34 Id. 

35Although commonly referred to as the 1998 

Global Agreement, this provision is more formally 

titled the ‘‘1998 Agreement Concerning the 

Establishing of Global Technical Regulations for 

Wheeled Vehicles, Equipment and Parts which can 

be Fitted and/or be Used on Wheeled Vehicles.’’ 

36While the 1998 Agreement obligates such 

Contracting Parties to initiate rulemaking within 

one year of the establishment of the GTR, it leaves 

the ultimate decision of whether to adopt the GTR 

into their domestic law to the parties themselves. 

stability control must be temporarily 

overridden to allow roll stability control 

to change the path of the vehicle to 

reduce lateral acceleration. 

NHTSA did not include requirements 

for roll stability control in the final rule 

for several reasons. First, roll stability 

control involved relatively new 

technology, and none of the vehicles 

examined in NHTSA’s crash data study 

which proved the substantial safety 

benefits of yaw stability control also had 

roll stability control. We do not 

currently have sufficient information on 

the effectiveness of roll stability control 

as a safety technology to include it as 

part of this safety standard. Moreover, 

because roll stability control in theory 

functions by temporarily disabling yaw 

stability control, NHTSA cannot judge 

its overall effect without real-world 

crash data. 

Our highest priority is ensuring that 

the ESC systems required by FMVSS 

No. 126 are present on all vehicles as 

soon as possible. Just because the final 

rule did not include roll stability control 

as part of FMVSS No. 126, however, 

does not mean that the agency does not 

acknowledge that the technology may 

eventually demonstrate safety benefits. 

We stated in the final rule that ‘‘The 

agency will track the rollover rate of 

vehicles equipped with roll stability 

control through analysis of Stategenerated crash data and evaluate its 

effectiveness once a sufficient sample 

size becomes available (i.e., 

approximately three to four years).’’ 30

Further, FMVSS No. 126 does not 

preclude manufacturers from equipping 

vehicles with roll stability control. 

Finally, we are denying AAJ’s request 

that ‘‘the agency * * * establish a 

rulemaking to address [roll stability 

control] immediately’’ if it denies the 

petition for reconsideration. As 

discussed above, NHTSA will continue 

monitoring roll stability control as a 

safety technology. We are undertaking 

our own research on RSC, and are 

collecting comparative crash data on 

RSC-equipped vehicles from the states. 

We will consider initiating rulemaking 

as we gather more information regarding 

its practicability and the safety benefits 

that it provides. As the final rule stated, 

* * * because our data study showed yaw 

stability control reducing rollovers of SUVs 

by 84% by reducing and mitigating road 

departures, and because on-road untripped 

rollovers are much less common events, the 

target population of crashes that roll stability 

control could possibly prevent may be very 

small. If and when roll stability control can 

be shown to be cost-effective, then it could 

be a candidate for inclusion in the standard 

in subsequent rulemaking.31

AAJ provided no additional facts or 

information in its petition for 

reconsideration/rulemaking that 

contributes to the agency’s 

understanding of whether a roll stability 

control safety standard is necessary or 

helpful at this time, or whether 

requiring manufacturers to provide the 

information on roll stability control that 

AAJ suggests would, in fact, be 

necessary or helpful. Therefore, we are 

denying its request. 

J. NHTSA’s Discussion of Implied 

Preemption 

AAJ objected to the agency’s general 

statement in the final rule preamble 

that, in Geier v. American Honda Motor 

Co., the Supreme Court recognized the 

possibility that state tort law can create 

an obstacle to a NHTSA safety standard 

and could therefore be impliedly 

preempted. AAJ interpreted that 

statement as a claim by the agency that 

the ESC rule itself impliedly preempts 

state tort law and requested that the 

agency eliminate that statement. (Since 

the agency cannot ‘‘eliminate’’ a 

discussion in the preamble of an already 

published final rule, we assume that 

AAJ is asking that the agency ‘‘disavow’’ 

the discussion.) AAJ argued that ‘‘Geier 

is an unusual, fact-driven case which 

cannot be used to establish preemption 

of state tort law for all NHTSA motor 

vehicle safety rules.’’ Based on its view 

that the agency had made a claim of 

preemption, AAJ further argued that, 

under the Administrative Procedure 

Act, ‘‘any claim of conflict preemption 

must be preceded by notice and 

comment as to whether a direct conflict 

exists between state law and the 

electronic stability control rule.’’ 

Agency response: The agency does not 

consider this portion of AAJ’s 

submission to be a petition for 

reconsideration, as NHTSA’s 

preemption discussion is not a rule.32

Accordingly, we are treating this portion 

as a simple request to disavow the 

discussion in the final rule preamble. 

We provided the general discussion of 

implied preemption and Geier in 

accordance with the directive of 

Executive Order 13132, Federalism, for 

agencies to analyze the federalism 

implications of their rulemakings. In 

that discussion, the agency explained 

that NHTSA’s safety standards can 

preempt state laws in at least two ways: 

Either expressly, through the express 

preemption provision of the Vehicle 

Safety Act, or impliedly, if State 

requirements create a conflict and thus 

stand as an obstacle to the 

accomplishment and execution of a 

NHTSA safety standard.33 Per the 

Order, we considered the nature of the 

ESC standard and its objectives and 

whether there might be specific 

conflicts between the standard and 

anticipated State tort law. We did not 

detect any conflicts.34 Without a 

conflict, there is no implied preemption. 

However, we could not then, and cannot 

now, completely rule out the possibility 

that such a conflict might become 

apparent in the future through 

subsequent experience with the 

standard. Even if the agency had 

identified what it believed to be a 

conflict, the issue of whether there was 

a conflict and, if so, whether State tort 

law action would be impliedly 

preempted would ultimately be a matter 

for the courts to decide. For the 

aforementioned reasons, the agency 

declines to remove the Geier language 

from its discussion of preemption law. 

K. International Harmonization and the 

Global Technical Regulation for ESC 

The April 2007 final rule described 

NHTSA’s intent to begin formal work to 

develop a global technical regulation 

(GTR) on ESC in that year. Over the 

course of several meetings of the United 

Nations’ Economic Commission for 

Europe (UNECE) World Forum for the 

Harmonization of Vehicle Regulations 

(WP.29) during 2007 and 2008, the 

agency participated in successful efforts 

that culminated in the establishment of 

the ESC GTR under the 1998 Global 

Agreement.35 The U.S., as a Contracting 

Party of the 1998 Agreement that voted 

in favor of establishing this GTR, is 

obligated under the Agreement to 

initiate the process for adopting the 

provisions of the GTR.36 The issuance of 

this response to petitions for 

reconsideration fulfills the obligation of 


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the U.S. to initiate that process. The 

regulatory text of the April 2007 final 

rule, as amended by this document, is 

consistent with that of the GTR. 

IV. Rulemaking Analyses and Notices 

This rule makes several minor 

changes to the regulatory text of FMVSS 

No. 126, and does not increase the 

regulatory burden of manufacturers. The 

agency has discussed the relevant 

requirements of the Vehicle Safety Act, 

Executive Order 12866, the Department 

of Transportation’s regulatory policies 

and procedures, the Regulatory 

Flexibility Act, Executive Order 13132 

(Federalism), Executive Order 12988 

(Civil Justice Reform), Executive Order 

13045 (Protection of Children from 

Environmental Health and Safety Risks), 

the Paperwork Reduction Act, the 

National Technology Transfer and 

Advancement Act, the Unfunded 

Mandates Reform Act, and the National 

Environmental Policy Act in the April 

2007 final rule cited above. Those 

discussions are not affected by these 

changes. 

Privacy Act 

Please note that any one 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), or you may visit http:// 

www.dot.gov/privacy.html. 

V. Regulatory Text 

List of Subjects in 49 CFR Parts 571 and 

585 

Imports, Motor vehicle safety, Report 

and recordkeeping requirements, Tires. 

■ In consideration of the foregoing, 

NHTSA is amending 49 CFR part 571 as 

follows: 

PART 571—FEDERAL MOTOR 

VEHICLE SAFETY STANDARDS 

■ 1. The authority citation for part 571 

continues to read as follows: 

Authority: 49 U.S.C. 322, 30111, 30115, 

30117, and 30166; delegation of authority at 

49 CFR 1.50. 

■ 2. In Section 571.101, revise S5.5.2, 

S5.5.5, and Table 1 to read as follows: 

§ 571.101 Standard No. 101; Controls and 

displays. 

* * * * * 

S5.5.2 The telltales for any brake 

system malfunction required by Table 1 

to be red, air bag malfunction, low tire 

pressure, electronic stability control 

malfunction (as of September 1, 2011), 

passenger air bag off, high beam, turn 

signal, and seat belt must not be shown 

in the same common space. 

* * * * * 

S5.5.5 In the case of the telltale for a 

brake system malfunction, air bag 

malfunction, side air bag malfunction, 

low tire pressure, electronic stability 

control malfunction (as of September 1, 

2011), passenger air bag off, high beam, 

turn signal, or seat belt that is designed 

to display in a common space, that 

telltale must displace any other symbol 

or message in that common space while 

the underlying condition for the 

telltale’s activation exists. 

* * * * * 

BILLING CODE 4910–59–P 


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■ 3. In Section 571.126, revise S4, 

S5.1.2, S5.3, S5.3.3, S5.3.9, S5.4, S5.4.1, 

S5.4.2, S5.4.3, ,S5.5.1, S5.5.4, S6.3.1, 

S7.10.2, S7.10.3, and S7.10.4 to read as 

follows; add S5.3.10, S5.4.2, and S5.5.10 

to read as follows; and redesignate 

S5.4.2 and S5.4.3 to S5.4.3 and S5.4.4, 

respectively to read as follows: 

§ 571.126 Standard No. 126; Electronic 

stability control systems 

* * * * * 

S4. Definitions. 

Ackerman Steer Angle means the 

angle whose tangent is the wheelbase 

divided by the radius of the turn at a 

very low speed. 

Drive configuration means the driverselected, or default, condition for 

distributing power from the engine to 

the drive wheels (examples include, but 

are not limited to, 2-wheel drive, frontwheel drive, rear-wheel drive, all-wheel 

drive, 4-wheel drive high gear with 

locked differential, and 4-wheel drive 

low gear). 

Electronic stability control system or 

ESC system means a system that has all 

of the following attributes: 

(1) That augments vehicle directional 

stability by applying and adjusting the 

vehicle brake torques individually to 

induce a correcting yaw moment to a 

vehicle; 

(2) That is computer-controlled with 

the computer using a closed-loop 

algorithm to limit vehicle oversteer and 

to limit vehicle understeer; 

(3) That has a means to determine the 

vehicle’s yaw rate and to estimate its 

side slip or side slip derivative with 

respect to time; 

(4) That has a means to monitor driver 

steering inputs; 

(5) That has an algorithm to determine 

the need, and a means to modify engine 

torque, as necessary, to assist the driver 

in maintaining control of the vehicle; 

and 

(6) That is operational over the full 

speed range of the vehicle (except at 

vehicle speeds less than 20 km/h (12.4 

mph), when being driven in reverse, or 

during system initialization). 

Lateral acceleration means the 

component of the vector acceleration of 

a point in the vehicle perpendicular to 

the vehicle’s x-axis (longitudinal) and 

parallel to the road plane. 

Low-range four-wheel drive 

configuration means a drive 

configuration that has the effect of 

locking the drive gears at the front and 

rear axles together and providing an 

additional gear reduction between the 

engine speed and vehicle speed of at 

least 2.0. 

Mode means an ESC performance 

algorithm, whether driver-selected or 

not (examples include, but are not 

limited to, standard (default) mode, 

performance mode, snow or slippery 

road mode, or Off mode). 

Oversteer means a condition in which 

the vehicle’s yaw rate is greater than the 

yaw rate that would occur at the 

vehicle’s speed as a result of the 

Ackerman Steer Angle. 

Side slip or side slip angle means the 

arctangent of the lateral velocity of the 

center of gravity of the vehicle divided 

by the longitudinal velocity of the 

center of gravity. 

Understeer means a condition in 

which the vehicle’s yaw rate is less than 

the yaw rate that would occur at the 

vehicle’s speed as a result of the 

Ackerman Steer Angle. 

Yaw rate means the rate of change of 

the vehicle’s heading angle measured in 

degrees/second of rotation about a 

vertical axis through the vehicle’s center 

of gravity. 

* * * * * 

S5.1.2 Is operational during all 

phases of driving including 

acceleration, coasting, and deceleration 

(including braking), except when the 

driver has disabled ESC, the vehicle 

speed is below 20 km/h (12.4 mph), the 

vehicle is being driven in reverse, or 

during system initialization 

* * * * * 

S5.3 ESC Malfunction. The vehicle 

must be equipped with a telltale that 

provides a warning to the driver of the 

occurrence of one or more malfunctions 

that affect the generation or 

transmission of control or response 

signals in the vehicle’s electronic 

stability control system. When tested 

according to S7.10, the ESC malfunction 

telltale: 

* * * * * 

S5.3.3 As of September 1, 2011, 

except as provided in paragraphs S5.3.4, 

S5.3.5, S5.3.8, and S5.3.10, the ESC 

malfunction telltale must illuminate 

only when a malfunction(s) of the ESC 

system exists and must remain 

continuously illuminated under the 

conditions specified in S5.3 for as long 

as the malfunction(s) exists (unless the 

‘‘ESC malfunction’’ and ‘‘ESC Off’’ 

telltales are combined in a two-part 

telltale and the ‘‘ESC Off’’ telltale is 

illuminated), whenever the ignition 

locking system is in the ‘‘On’’ (‘‘Run’’) 

position; and 

* * * * * 

S5.3.9 Prior to September 1, 2011, a 

disconnection of the power to the ESC 

electronic control unit may be indicated 

by the ABS malfunction telltale instead 

of the ESC malfunction telltale. 

S5.3.10 Manufacturers may use the 

ESC malfunction telltale in a steadyburning mode to indicate malfunctions 

of ESC-related systems and functions 

including traction control, trailer 

stability assist, corner brake control, and 

other similar functions that use throttle 

and/or individual wheel torque control 

to operate and share common 

components with the ESC system, and 

may use the ESC malfunction telltale in 

a flashing mode to indicate operation of 

these ESC-related systems. 

S5.4 ESC Off and Other System 

Controls. The manufacturer may include 

an ‘‘ESC Off’’ control whose only 

purpose is to place the ESC system in 

a mode or modes in which it will no 

longer satisfy the performance 

requirements of S5.2.1, S5.2.2, and 

S5.2.3. An ‘‘ESC Off’’ control may be 

combined with other controls in a 

multi-function control. Manufacturers 

may also provide controls for other 

systems that have an ancillary effect 

upon ESC operation. Controls of either 

kind that place the ESC system in a 

mode in which it will no longer satisfy 

the performance requirements of S5.2.1, 

S5.2.2, and S5.2.3 are permitted, 

provided that: 

S5.4.1 The vehicle’s ESC system 

must always return to the 

manufacturer’s original default ESC 

mode that satisfies the requirements of 

S5.1 and S5.2 at the initiation of each 

new ignition cycle, regardless of what 

ESC mode the driver had previously 

selected, unless (a) the vehicle is in a 

low-range four-wheel drive 

configuration selected by the driver on 

the previous ignition cycle that is 

designed for low-speed, off-road 

driving, or (b) the vehicle is in a fourwheel drive configuration selected by 

the driver on the previous ignition cycle 

that is designed for operation at higher 

speeds on snow-, sand-, or dirt-packed 

roads and that has the effect of locking 

the drive gears at the front and rear 

axles together, provided that the vehicle 

meets the stability performance 

requirements of S5.2.1 and S5.2.2 in this 

mode. 

S5.4.2 In addition to the 

requirements of S5.4.1, if the vehicle’s 

ESC system has more than one ESC 

mode that satisfies the requirements of 

S5.1 and S5.2 within the drive 

configuration selected for the previous 

ignition cycle, the system must return to 

the manufacturer’s original default ESC 

mode. 

S5.4.3 As of September 1, 2011, a 

control whose only purpose is to place 

the ESC system in a mode or modes in 

which it will no longer satisfy the 

performance requirements of S5.2.1, 

S5.2.2, and S5.2.3 must be identified by 

the symbol shown for ‘‘ESC Off’’ in 

Table 1 of Standard No. 101 (49 CFR 


ebenthall on PROD1PC60 with RULES
Federal Register / Vol. 73, No. 184 / Monday, September 22, 2008 / Rules and Regulations 54543 

571.101), or the text, ‘‘ESC Off’’ as listed 

under ‘‘Word(s) or Abbreviations’’ in 

Table 1 of Standard No. 101 (49 CFR 

571.101). 

S5.4.4 A control for another system 

that has the ancillary effect of placing 

the ESC system in a mode in which it 

no longer satisfies the performance 

requirements of S5.2.1, S5.2.2, and 

S5.2.3 need not be identified by the 

‘‘ESC Off’’ identifiers in Table 1 of 

Standard No. 101 (49 CFR 571.101), but 

the ESC status must be identified by the 

‘‘ESC Off’’ telltale in accordance with 

S5.5, as of September 1, 2011, except if 

the vehicle is in a 4-wheel drive high 

gear configuration that has the effect of 

locking the drive gears at the front and 

rear axles together provided the vehicle 

meets the stability performance criteria 

of S5.2.1 and S5.2.2. 

* * * * * 

S5.5.1 Except as provided in 

S5.5.10, the vehicle manufacturer must 

provide a telltale indicating that the 

vehicle has been put into a mode that 

renders it unable to satisfy the 

requirements of S5.2.1, S5.2.2 and 

S5.2.3, if such a mode is provided. 

* * * * * 

S5.5.4 Except as provided in 

paragraph S5.4.4, the ‘‘ESC Off’’ telltale 

must remain continuously illuminated 

for as long as the ESC is in a mode that 

renders it unable to satisfy the 

requirements of S5.2.1, S5.2.2, and 

S5.2.3, and 

* * * * * 

S5.5.10 The ‘‘ESC Off’’ telltale need 

not illuminate when the vehicle is in a 

4-wheel drive high gear locked 

differential configuration that has the 

effect of locking the drive gears at the 

front and rear axles together provided 

the vehicle meets the stability 

performance requirements of S5.2.1 and 

S5.2.2. 

* * * * * 

S6.3.1 The ESC system is enabled 

for all testing, except when it is turned 

off directly or by simulating a 

malfunction in accordance with S7.3 

and S7.10, respectively. The ESC system 

shall be initialized as follows: Place the 

vehicle in a forward gear and obtain a 

vehicle speed of 48 ± 8 km/h (30 ± 5 

mph). Drive the vehicle for at least two 

minutes including at least one left and 

one right turning maneuver and at least 

one application of the service brake. 

* * * * * 

S7.10.2 With the vehicle initially 

stationary and the ignition locking 

system in the ‘‘Lock’’ or ‘‘Off’’ position, 

activate the ignition locking system to 

the ‘‘Start’’ position and start the engine. 

Place the vehicle in a forward gear and 

obtain a vehicle speed of 48 ± 8 km/h 

(30 ± 5 mph). Drive the vehicle for at 

least two minutes including at least one 

left and one right turning maneuver and 

at least one application of the service 

brake. Verify that within two minutes 

after obtaining this vehicle speed the 

ESC malfunction indicator illuminates 

in accordance with S5.3. 

S7.10.3 As of September 1, 2011, 

stop the vehicle, deactivate the ignition 

locking system to the ‘‘Off’’ or ‘‘Lock’’ 

position. After a five-minute period, 

activate the vehicle’s ignition locking 

system to the ‘‘Start’’ position and start 

the engine. Verify that the ESC 

malfunction indicator again illuminates 

to signal a malfunction and remains 

illuminated as long as the engine is 

running or until the fault is corrected. 

S7.10.4 Deactivate the ignition 

locking system to the ‘‘Off’’ or ‘‘Lock’’ 

position. Restore the ESC system to 

normal operation, activate the ignition 

system to the ‘‘Start’’ position and start 

the engine. Place the vehicle in a 

forward gear and obtain a vehicle speed 

of 48 ± 8 km/h (30 ± 5 mph). Drive the 

vehicle for at least two minutes 

including at least one left and one right 

turning maneuver and at least one 

application of the service brake. Verify 

that within two minutes after obtaining 

this vehicle speed that the ESC 

malfunction indicator has extinguished. 

* * * * * 

Issued: September 16, 2008. 

David Kelly, 

Acting Administrator. 

[FR Doc. E8–22067 Filed 9–19–08; 8:45 am] 

BILLING CODE 4910–59–P 


ebenthall on PROD1PC60 with RULES