Interpretation ID: 86-6.28

TYPE: INTERPRETATION-NHTSA

DATE: 12/31/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Aaron M. Lowe -- Executive Director, Vehicle Security Association

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. Aaron M. Lowe Executive Director Vehicle Security Association 5100 Forbes Boulevard Lanham, MD 20706

This responds to your letter dated July 22, 1986, requesting this agency to withdraw the granting of four petitions for exemption from the vehicle theft prevention standard.

You state in your letter that the Vehicle Security Association (VSA) challenges the granting of petitions to Volkswagen of America, Inc., General Motors Corporation, Isuzu Motors Corporation, and Nissan Research and Development, Inc. for exemption of certain vehicle lines beginning in model year 1987. For the reasons given below, the agency believes these petitions for exemption from the vehicle theft prevention standard were properly granted according to the requirements of section 605 of the Motor Vehicle Information and Cost Savings Act and 49 CFR Part 543, Petition for Exemption from the Vehicle Theft Prevention Standard.

You state that the lack of theft data concerning vehicles marked in accordance with the theft prevention standard makes it difficult for NHTSA to make a determination, based upon substantial evidence, that a standard equipment antitheft device is likely to be as effective as compliance with Part 541 in reducing and deterring theft. You add that the agency is not required to approve petitions for exemption and request that the agency withdraw its grants of those petitions for that reason.

Section 605 of the Motor Vehicle Information and Cost Savings Act permits vehicle manufacturers to petition NHTSA to allow high theft vehicle lines to be exempted from the standard. To be exempted, a high theft line must be equipped with an antitheft device as standard equipment and NHTSA must determine that antitheft device is likely to be as effective as parts making in reducing and deterring theft. This section requires that the agency's determination to grant or deny a petition be made within 120 days after the date of filing the petition. If the agency fails to make a determination within the specified time period, this section also states that the petition shall be considered granted.

In the notices granting the petitions filed by these four manufacturers, NHTSA noted that the limited and apparently conflicting data on the effectiveness of the pre-standard parts marking programs makes it difficult in the first year of this legislation's implementation to compare the effectiveness of an antitheft device with the effectiveness of compliance with the theft prevention standard. Section 605 clearly requires such a comparison, which the agency has made on the basis of the limited data available. However, the House Committee Report states that section 605 was adopted because the Committee was willing to give standard equipment antitheft devices "an opportunity to be proved as effective in deterring theft as the numbering standard." H. R. Rep. No. 1087, 98th Cong., 2d Sess., at 17. The agency believes that Congress did not intend that the data limitations in the early phase of implementing the theft prevention standard result in across-the-board denials of exemption petitions.

If, as the standard is implemented, NHTSA receives data indicating that a manufacturer's antitheft device has not been as effective in reducing and deterring motor vehicle theft as compliance with the theft prevention standard, the agency may terminate the exemption under section 605(d). The agency will be monitoring these and other theft data in an attempt to effectively implement the purposes of the vehicle theft legislation.

Sincerely

Erika Z. Jones Chief Counsel

July 22, 1986

Ms. Erika Jones Chief Counsel National Highway Traffic Safety Administration 400 7th Street, S.W. Washington, D.C. 20590

Dear Ms. Jones:

VSA officially challenges the granting of petitions to Volkswagon/Audi, General Motors, Isuzu, and Nissan by the National Highway Traffic Safety Administration (NHTSA) for exemptions from the marking requirements of The Motor Vehicle Theft Law Enforcement Act of 1984. VSA firmly contends that the petitions did not meet the requirements as established by the Act and therefore should not have been granted.

VSA is a trade association representing manufacturers, manufacturer's representatives, distributors, and retailers of vehicles security systems. These companies sell primarily in the aftermarket. While VSA strongly believes that the installation of security systems in cars can be of great benefit in preventing the incidence of theft, we also must point out that one of the prime benefits of aftermarket security systems as they are installed today in the variety of systems and the differences in installation of each system on each car. These permutations add a degree of difficulty for thieves attempting to steal cars with aftermarket antitheft systems.

The opposite holds true for cars standard equipped with security systems. NHTSA itself provides the reasoning behind this difference. In its "Report on Automobile Antitheft Devices," NHTSA states "once thieves had determined the means to defeat one manufacturer's system, they would, in essence, be able to defeat all such systems since they would be manufactured to the same specifications. Such a result would clearly be inconsistent with the goals of the Theft Act."

Although the agency confines its discussion to a federal standard for security systems, the argument can be extended against original equipment systems. All manufacturers if they standard equip a car line with a security system, must manufacture the systems to the same specifications. Therefore what is true for a federal standard also is true for a standard equipped system. Once a thief disengages a security system on one car in a car line, he can perform the same feat with the remainder of the cars he comes upon in that line. The word "standard" in either case spells trouble for the car owner who possesses such a system. VSA admits that impressive data on the effectiveness of standard equipped security systems was reported in the NHTSA "Report on Automobile Antitheft Devices" regarding the Nissan 280 ZX and the Cadillac Eldorado Convertible; however, NHTSA itself admits that this data is inconclusive. NHTSA's statistics seem to show that in the short term, a standard equipped system could be beneficial. However, as thieves learn the systems, we we question how effective they will be in the long term.

NHTSA's regulations mention that this provision of the Theft Act is to provide this technology an opportunity. VSA wonders whether a car owner who spends over $20,000 for a new car will appreciate it being stolen in order to provide the car companies with an experiment which they could have accomplished without government sanction. We further question whether a car owner will be grateful to hear, that once the car is stolen, recovery of the vehicle will be less likely because the car maker was exempted from the parts marking standard.

NHTSA seems to be inventing Congressional intent rather than implementing the letter of the law. Section 605 (a) (1) of the theft auto states: "Any manufacturer may petition the Secretary for an exemption from the application of any of the requirements of the vehicle theft prevention standard under section 602 for any line or lines of passenger motor vehicles which are equipped as standard equipment with an antitheft device which the Secretary determines is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the requirements of such standard." Part (c) of this section states that the Secretary shall make the determination based upon "substantial evidence".

NHTSA admits in its regulations that there is little substantial evidence from which to make that determination. "The agency realizes that empirical data bearing directly on the effectiveness of marking done in compliance with the theft prevention standard will not be available for petitions for model years 1987 or 1988. The agency will have to make determinations based partially on engineering judgements about the information otherwise available to the agency on the effectiveness of means for reducing and deterring theft".

VSA feels compelled to remind NHTSA that no where in the law is it required to approve exemptions. If NHTSA concludes that it cannot make a determination on whether a system will likely be as effective as marking parts based on substantial evidence, then the Agency should act responsibly and reject the petition. NHTSA appears to be struggling to justify the petitions based on "engineering judgements." Such tortured interpretations of the law are clearly contrary to public interest.

VSA therefore requests that NHTSA withdraw the granted petitions and instead require marking of the parts according to the law.

Thank you for your attention and we look forward to your response.

Sincerely,

Aaron M. Lowe Executive Director