ID: 9459ez

Erika Z. Jones, Esq.
Mayer, Brown & Platt
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006-1882

Dear Ms. Jones:

This responds to your letter asking for our concurrence that '103(d) of the National Traffic and Motor Vehicle Safety Act preempts a "California flammability standard" as that standard applies to child restraint systems. The standard you enclosed is California Business and Professions Code, Division 8, Chapter 3, '19006 and '19161. I apologize for the delay in this response.

Because it was not readily apparent from your letter that the California flammability standard applies to child restraint systems, Ms. Fujita of my staff contacted California state officials for more information about the standard. We were informed by Mr. Art Anderson, Chief of the California Highway Safety Office, that California does not have a flammability standard for child restraint systems. Mr. Anderson was aware that Federal Motor Vehicle Safety Standard (FMVSS) No. 302 applies to child restraints by way of S5.7 of FMVSS No. 213, "Child Restraint Systems."

As you point out, Federal preemption issues would arise if California had a flammability standard for child restraint systems that covered the same aspect of performance as FMVSSs 213 and 302. However, in view of Mr. Anderson's statement that California has no flammability standard for child restraint systems, we need not address those issues today.

We hope this information is helpful. Mr. Anderson of the California Highway Safety Office (telephone (916) 445-0527) said he will be happy to answer any questions you might have about California's requirements. If you any further questions about '103(d), please do not hesitate to contact us.

Sincerely,

John Womack Acting Chief Counsel

cc: Art Anderson ref:213#302 d:6/9/94

ID: nht94-3.35

TYPE: INTERPRETATION-NHTSA

DATE: June 9, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Erika Z. Jones -- Esq., Mayer, Brown & Platt

TITLE: None

ATTACHMT: Attached To Letter Dated 12/16/93 From Erika Jones To John Womack (OCC-9459)

TEXT: Dear Ms. Jones:

This responds to your letter asking for our concurrence that @ 103(d) of the National Traffic and Motor Vehicle Safety Act preempts a "California flammability standard" as that standard applies to child restraint systems. The standard you enclosed is Ca lifornia Business and Professions Code, Division 8, Chapter 3, @ 19006 and @ 19161. I apologize for the delay in this response.

Because it was not readily apparent from your letter that the California flammability standard applies to child restraint systems, Ms. Fujita of my staff contacted California state officials for more information about the standard. We were informed by Mr . Art Anderson, Chief of the California Highway Safety Office, that California does not have a flammability standard for child restraint systems. Mr. Anderson was aware that Federal Motor Vehicle Safety Standard (FMVSS) No. 302 applies to child restrain ts by way of S5.7 of FMVSS No. 213, "Child Restraint Systems."

As you point out, Federal preemption issues would arise if California had a flammability standard for child restraint systems that covered the same aspect of performance as FMVSSs 213 and 302. However, in view of Mr. Anderson's statement that California has no flammability standard for child restraint systems, we need not address those issues today.

We hope that this explanation is helpful. Mr. Anderson of the California Highway Safety Office (telephone (916) 445-0527) said he will be happy to answer any questions you might have about California's requirements. If you any further questions about @ 103(d), please do not hesitate to contact us.

Sincerely,

ID: nht75-4.14

DATE: 05/14/75

FROM: AUTHOR UNAVAILABLE; Richard B. Dyson; NHTSA

TO: Gurley Refining Company

TITLE: FMVSS INTERPRETATION

TEXT: In your letter of April 10, 1975, you ask whether a label you enclosed meets the requirements of Motor Vehicles Safety Standard No. 116.

The color coding requirements published on August 22, 1974, have been suspended for the present. The phrase "conforms or exceeds FMVSS 116" meets the requirements "certification that the brake fluid conforms to Federal Motor Vehicle Safety Standard No. 116," although it is ungrammatical and the reference to "exceeding" is redundant.

Your label therefore meets our requirements.

YOURS TRULY,

April 10, 1975

(Illegible Word) Legal Council National Highway Traffic Safety Administration

Dear Sir:

Enclosed you will find a black and white laycut of the label we use to package brake fluid. We wish an official ruling from your department as to whether or not our label does conform to all the requirements of FMVSS 116 as amended in Federal Register, Volumn 39, Number 164 - Thursday, August 22, 1974. Your prompt attention to this matter will be appreciated.

Very truly yours, JIM BENNETT -- GURLEY REFINING CO.

Enclosure

CRG

SUPER HEAVY DUTY

BRAKE FLUID DOT 3 MOTOR VEHICLE BRAKE FLUID 284 degrees F Min. Wet Boiling Point

NET 12 FLUID OZS. CONFORMS OR EXCEEDS FMVSS 116

GRC HYDRAULIC BRAKE FLUID

(Illegible Text)

GURLEY REFINING CO. MEMPHIS, TENN. 30102

CUST. GURLEY REFINING DESIGN (Illegible Words)

ENG. 2700-1

S.O. 244-3191

SIZE 211X467.5

C.E. 459X8364

B.P.

DATE 10-19-71

NO. PROOFS PROOF DATE CHANGE A 1-11-72 CHANGE B CHANGE C

ID: aiam1115

Dear Mr. Turner: This is in reply to your letter of March 26, 1973, to Mr. Georg Shifflett of my staff, enclosing a letter from Mr. I. Warren Simpson of Standard Parts Corporation. Mr. Simpson's questions, as amplified in a phone conversation we had with him following your suggestion, are restated below, and followed by our responses.; 1. When 'glyder kits' are installed, is the installer considered to b a manufacturer and therefore responsible for certification? (We understand 'glyder kits' to mean a cab with chassis, less power train and rear axle.); Whether a vehicle must be certified depends upon whether it is 'completed vehicle', as that term is defined in 49 CFR S 568.3 (Vehicles Manufactured in Two or More Stages), copy enclosed. If the installation of a glyder kit produces a 'completed vehicle', the installer must certify the vehicle, as specified in 49 CFR Parts 567, 568, as conforming to all applicable Federal Motor Vehicle Safety Standards.; In cases involving the refurbishing of a used chassis, the NHTS considers the refurbished vehicle to be a used vehicle, for which no certification is necessary. However, the implication from your letter is that a glyder kit installation involves a new chassis (only the rear axle and power train are used) and consequently the completed vehicle will be a new vehicle which must be certified.; There is also the possibility that a glyder kit, when installed, wil be an 'incomplete vehicle' (also defined in 49 CFR 568.3). An incomplete vehicle is not certified. Rather, its manufacturer prepares, and ships with it pursuant to Part 568, a document containing information on steps that the final-stage manufacturer must take in order to bring the vehicle, as completed, into conformity with applicable Federal standards.; 2. Are we required to know the first purchaser for purposes other tha resale (users) of the vehicle when we complete the vehicle for a dealer?; Section 113(f) of the National Traffic and Motor Vehicle Safety Act (1 USC 1402(f)) requires each manufacturer of motor vehicles to maintain records of the names and addresses of the first purchaser (other than a dealer and distributor) of motor vehicles produced by that manufacturer. In completing a vehicle for a dealer, you are the final-stage manufacturer of the vehicle, and are responsible for maintaining the names and addresses of first purchasers. The information can be obtained from the dealers for whom you complete vehicles.; 3. If the vehicles are involved in a 'defect notification' campaign ar we, as final-stage manufacturer (we install fifth wheels), required to participate?; Under the National Traffic and Motor Vehicle Safety Act, a manufacture of motor vehicles is responsible for notifying owners of vehicles that he manufacturers (sic). Usually, for multi-stage vehicles, the incomplete vehicle manufacturer will issue notification for defects covering those vehicle parts or components which he assembled or manufactured. Final stage manufacturers, like yourself, would do likewise. Under the Defect Notification regulations (49 CFR Part 577), if any one manufacturer who participates in the manufacture of a multi-stage vehicle conducts a notification campaign, the other manufacturers will not be required to do so. You may, however, be called upon to furnish to the manufacturer conducting the campaign the names and addresses of purchasers for vehicles you have completed.; 4. 'How can a distributor safely attach a fifth wheel? (Any fram failure is our liability since the OEM is very specific about neither, welding, drilling, or cutting the frame.)'; This agency is not in a position to give advice in this regard. Th problem should be worked out between the incomplete and final-stage manufacturer.; We are enclosing the following pertinent publications: >>>1. The National Traffic and Motor Vehicle Safety Act 2. Part 567, 'Certification', and Part 568, 'Vehicles Manufactured i Two or More Stages.'; 3. Part 573, 'Defect Reports.' 4. Part 577, 'Defect Notification.'<<< If you have further questions, we will be pleased to answer them. Sincerely, Francis Armstrong, Director, Office of Standard Enforcement, Motor Vehicle Programs;

ID: aiam4376

Dear Mr. Jones: This is in response to your letter to Mr. Stephen Oesch, formerly of m staff, concerning the agency's position on the use of windshield repair, as opposed to replacement, for motor vehicles. I apologize for the delay in this response. You indicate that you are very much interested in the credibility of windshield repair as a viable alternative to windshield replacement, and that you seek any information the agency can provide in the development of safety standards regarding the repair process. We have the following comments.; The National Highway Traffic Safety Administration (NHTSA) i responsible for issuing safety standards that apply to new motor vehicles and motor vehicle equipment. However, NHTSA does not approve, endorse, or offer assurances of compliance to any motor vehicles, motor vehicle equipment, or commercial services. Rather, each manufacturer must certify that its products meet all applicable Federal motor vehicle safety standards. Accordingly, we have never offered an opinion on the relative merits of repaired vs. replaced windshields. That choice is left for the market to decide, subject to the limitations set forth below.; The Federal motor vehicle safety standards apply to new motor vehicle and motor vehicle equipment. A manufacturer must certify that its motor vehicle meets the requirements of all applicable Federal motor vehicle safety standards before the vehicle is sold to the consumer for the first time. One of the standards with which a manufacturer must certify that the vehicle complies is Standard No. 205, *Glazing Materials*. If for some reason a windshield must be repaired before a new vehicle is sold to a consumer for the first time (for example, if the windshield is damaged in transit from the manufacturer to the dealer's place of business), the person making the repairs would be considered a vehicle alterer under our regulations (see 49 CFR Part 567). As an alterer, the person must certify that the windshield on the vehicle continues to comply with all of the requirements of Standard No. 205, regardless of whether the windshield was repaired or is a replacement windshield.; Once the vehicle has been sold to a first purchaser for purposes othe than resale, any repairs or replacement of the windshield are restricted only by the provision of section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1397(a)(2)(A)). That section prohibits any manufacturer, distributor, dealer or motor vehicle repair business from 'knowingly rendering inoperative any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard.' This agency has stated in a September 3, 1981 letter to the National Glass Dealers Association that NHTSA does *not* consider repairing a damaged windshield to constitute rendering inoperative with respect to Standard No. 205, even if the repaired windshield does *not* meet the requirements of the standard once repaired. This is because the agency considers the object or event which damaged the windshield in the first place, not the repair shop, to have rendered the windshield inoperative with respect to Standard No. 205. However, the repair shop must exercise caution that it does not render another part of the vehicle or element of design inoperative with respect to another applicable Federal motor vehicle safety standard in the course of fixing a damaged windshield. If this were the case, the repair shop could be in violation of section 108(a)(2)(A).; The Safety Act also places responsibilities on any manufacturer of windshield repair kit. Such a manufacturer is considered a manufacturer of motor vehicle equipment and is subject to the requirements of sections 151-159 of the Safety Act (15 U.S.C. 1411-1419) concerning the recall and remedy of products with defects related to motor vehicle safety.; These are the only requirements that we have with respect to windshiel repair. I can offer a suggestion in response to your request for information to help develop standards for windshield repair. You stated in your letter that you are a member of both ANSI and ASTM. One way for you, as an advocate of windshield repair, to try to ensure the reliability or efficacy of windshield repair would be to work with ANSI and ASTM to adopt product design and repair practices that result in repaired windshields meeting the performance requirements of Standard No. 205.; If you have further questions or need additional information on thi subject, please feel free to contact Susan Schruth of my staff at this address or by telephone at (202) 366- 2992.; Sincerely, Erika Z. Jones, Chief Counsel

ID: aiam5004

"Dear Mr. Randall: This responds to your letter of March 2, 1992 asking for confirmation that you will be a manufacturer of 'used' motor vehicles under the fact situation that you outlined and a previous interpretation of this agency. You intend to assemble replica vehicles which will incorporate new items of motor vehicle equipment except for 'previously used engine/transmission/drive axle/gearing combinations.' Because 'its running gear is not new', you believe that we would consider your vehicle 'as 'used' even thought its body and chassis are previously unused.' In support you cite a l980 interpretation of this Office under which the then Chief Counsel stated that 'the agency tends to view as 'used' a motor vehicle whose running gear is not new even though its body and chassis may be previously unused.' In that instance, the vehicle for which the interpretation was given was to be constructed from new parts except for the front suspension and axle, engine, and transmission. Your letter has provided an opportunity for the agency to review its position on motor vehicles constructed from a mixture of old and new parts. When the National Traffic and Motor Vehicle Safety Act was enacted in 1966, such motor vehicles were primarily 'kit cars.' A 'kit car' in those days consisted usually of a new body placed upon the chassis of an older Volkswagen from which the original body had been removed. The resulting assemblage generally retained the title of the original vehicle. The agency termed this type of vehicle a 'used' vehicle, and stated that the assemblage did not have to comply with the Federal motor vehicle safety standards that apply to vehicles at the time they are manufactured. The primary reason for this interpretation was the realization that it would be impracticable, if not impossible, for a motor vehicle to meet all contemporary Federal motor vehicle safety standards if that vehicle used a chassis that was manufactured before January 1, 1968, the date that the Federal standards began to apply to motor vehicles. Over the years, the body-on-chassis type of construction has grown less, and more complex fact situations have arisen with respect to motor vehicles constructed from old and new parts. Yet with the introduction of an increasing number of new parts, including the construction of a new chassis, the agency has applied the same rationale. With respect to the use of an older engine, NHTSA realized that compliance with two specific standards could be affected by the design of the engine and its components: Standard No. 124 Accelerator Control Systems, and Standard No. 301 Fuel System Integrity. Your letter affords the opportunity to review that rationale. Standard No. 124 has been in effect since September 1, 1973. Standard No. 301, initially effective January 1, 1968, contains upgraded performance requirements applicable to passenger cars as of September 1, 1977. Given the substantial number of motor vehicles that have been produced in accordance with these standards, and the probability that engines from these motor vehicles, though 'used', are likely to be incorporated into the manufacture of vehicles that are otherwise new, we have concluded that this rationale no longer supports an interpretation that relieves the manufacturer of a motor vehicle that uses all new components, except engine and drive train, from the responsibility of producing and certifying a motor vehicle that complies with all applicable Federal motor vehicle safety standards. Although you are correct that your situation appears analogous to the one in the 1980 letter, the passage of time has rendered that opinion untenable today. In a somewhat similar situation, on April 22, 1991, we informed Memory Motors, a replica manufacturer, that its product would be considered a 'new' vehicle for purpose of compliance with the Federal motor vehicle safety standards where the previously used chassis was retained in modified form, and the only used components retained included the rear axle assembly and front end components. As a small volume manufacturer of new motor vehicles, however, under 49 CFR Part 555 you become eligible to apply for a temporary exemption from one or more of the Federal motor vehicle safety standards for a period of up to three years if immediate compliance with the standard(s) would create substantial economic hardship. Although NHTSA does not grant blanket exemptions from the standards, it is sympathetic to small manufacturers who appear to have attempted in good faith to meet the standards but whose economic circumstances do not permit total compliance before manufacture of the vehicle is scheduled to commence. If you are interested in pursuing this possibility, we shall be pleased to advise you accordingly. Sincerely, Paul Jackson Rice Chief Counsel";

ID: aiam4564

"Dear Mr. Clark: Thank you for your letter in which you requeste confirmation of your company's status as an alterer of motor vehicles, pursuant to 49 CFR Part 567.7. You stated that your company, Cottle Industries, takes a new Honda moped that is certified as complying with all applicable safety standards, removes the plastic body shell and seating components, and adapts the vehicle for the use of wheelchair riders. Now called the Chariot, the modified moped allows the wheelchair bound to gain access to public roads and highways without having to ride in vans. You assert that the Honda front end and drive train components continue to retain their integrity. You enclosed a brochure describing the Chariot. I am pleased to have this opportunity to explain our regulations to you. Some background information on Federal motor vehicle safety laws and regulations may be helpful. As you are aware, our agency is authorized, under the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1381 et seq., Safety Act), to issue safety standards applicable to new motor vehicles and certain items of motor vehicle equipment. NHTSA, however does not approve motor vehicles or motor vehicle equipment, nor do we endorse any commercial products. Instead, the Safety Act establishes a 'self-certification' process under which each manufacturer is responsible for certifying that its products meet all applicable safety standards. Based on the facts set forth in your letter, it appears that Cottle Industries would be considered an alterer for the purposes of Part 567, Certification (copy enclosed). Alterers that are required to affix certification labels in accordance with 567.7 are defined in that section as follows: A person who alters a vehicle that has previously been certified in accordance with 567.4 or 567.5, other than by the addition, substitution, or removal of readily attachable components such as mirrors or tire and rim assemblies, or minor finishing operations such as painting, ... before the first purchase of the vehicle in good faith for purposes other than resale, shall allow the original certification label to remain on the vehicle, and shall affix to the vehicle an additional label of the type and in the manner and form described in 567.4, containing the following information: * * * * * Cottle Industries does alter previously certified vehicles (the Honda mopeds) before the first purchase of the mopeds in good faith for purposes other than resale. The only conditions in which Cottle would not be required to affix its own certification labels to each moped that it modifies would be: 1. The modifications consisted solely of 'readily attachable components,' or 2. The modifications were only 'minor finishing operations.' Based on the information you have provided, neither of these exceptions would apply in your company's case. Your company cuts the frame of the Honda moped being modified into two sections and then welds those sections to a new tubular steel frame. This new steel frame for the vehicle is not a 'readily attachable component.' Similarly, the operations performed by your company on the Honda mopeds appear to be far more sophisticated than 'minor finishing operations.' Accordingly, Cottle Industries appears to be an alterer subject to the requirements of 49 CFR 567.7. In this case, 567.7 requires that: (1) The alterer supplement the existing manufacturer certification label by affixing an additional label stating that the vehicle as altered conforms to all applicable Federal motor vehicle safety standards as well as stating the firm or individual name of the alterer and the month and the year in which the alterations were completed (see 567.7(a)), (2) The modified values for the vehicle be provided as specified in 567.4(g)(3) and (5), if the gross vehicle weight ratings or any of the gross axle weight ratings of the vehicle as altered are different from those shown on the original certification label (see 567.7(b)), and: (3) The type classification be provided, if the vehicle as altered has a different type of classification from that shown on the original certification. In addition to these certification requirements, an alterer is considered a 'manufacturer' for the purposes of the Safety Act. Among other things, this means an alterer is responsible for notification and remedy of defects related to motor vehicle safety and noncompliances with applicable Federal motor vehicle safety standards, as specified in sections 151-160 of the Safety Act, and alterers are subject to the requirements of 49 CFR Part 573, Defect and Noncompliance Reports. For the purposes of our safety standards, the Chariot would appear to be classified as a 'motorcycle.' A 'motorcycle' is defined at 49 CFR 571.3 as 'a motor vehicle with motive power having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground.' I am enclosing a publication entitled 'Federal Vehicle Safety Standards and Procedures,' which indicates those standards that apply to motorcycles. I am also enclosing a general information sheet for new manufacturers that gives a general description of the applicable regulations, and explains how to get copies of those regulations. You also indicated that your company plans to leave in place on the altered vehicles the vehicle identification number (VIN) originally assigned by Honda to the vehicles. Standard No. 115, Vehicle Identification Number - Basic Requirements (49 CFR 571.115) applies to all motorcycles. Section S4.1 of Standard No. 115 provides in part that: 'Vehicle alterers, as specified in 49 CFR 567.7, shall utilize the VIN assigned by the original manufacturer of the vehicle.' Accordingly, your company as an alterer is required to leave in place the VINs originally assigned by Honda. If you have any further questions or need additional information on this subject, please feel free to contact Dorothy Nakama of my staff at this address or by telephone at (202) 366-2992. Sincerely, Erika Z. Jones Chief Counsel Enclosures";

ID: nht95-4.79

TYPE: INTERPRETATION-NHTSA

DATE: November 16, 1995

FROM: Dietmar K. Haenchen -- Manager, Vehicle Regulations, Volkswagen of America, Inc.

TO: Chief Counsel -- NHTSA

TITLE: Request for Interpretation, FMVSS 124 "Accelerator Control Systems"

ATTACHMT: 1/19/96 letter from Samuel J. Dubbin to Dietmar K. Haenchen (A44; Std. 124)

TEXT: This letter is to request an interpretation with regard to the provisions of Section S5.1 which requires "at least two sources of energy capable of returning the throttle to the idle position within the time limits specified by S5.3 . . . In the event of failure of one source of energy by single severance or disconnection, the throttle shall return to the idle position within the time limit specified by S5.3 . . ."

The specific question for interpretation relates to the compliance under S5.1 of a system using a coil spring composed of multiple strands of wire twisted into a wire cable which is then coiled into a spring. This would provide "at least two sources of energy" because the individual strands that compose the wire cable each provide a separate source of energy. A drawing of such a spring showing a cable of three strands of wire is attached. Also enclosed is a sample spring which uses seven strands of w ire. Assuming in the spring consisting of three strands of wire, that if only one strand is broken, the remaining two would have sufficient force to return the throttle to idle, we believe such a spring would comply with S5.1 of the Standard. The seven strand wire spring provides even greater redundancy if, for example, the spring would have sufficient force to return the throttle to idle if up to three of the wire strands were broken. Endurance testing on seven strand wire springs without damage and with intentional damage has shown that even if damaged by the separation of one or two wire strands, the coil spring is still fully functional with enough torque to perform its intended function.

For purposes of this request for interpretation, it should be assumed that only a single coil spring consisting of the multiple strands would be provided to close the throttle.

Your response as soon as possible (within 30 days) will be appreciated.

Drawing omitted.

ID: nht75-1.4

DATE: 02/07/75

FROM: AUTHOR UNAVAILABLE; R. B. Dyson; NHTSA

TO: Fiat - Research and Development

TITLE: FMVSS INTERPRETATION

TEXT:

FEB 7 1975 N40-30 TWH

Mr. Alberto Negro, Director Fiat Research & Development Parklane Towers West One Parklane Boulevard Dearborn, Michigan 48126

Dear Mr. Negro:

This responds to your December 30, 1974, question whether the requirement of S5.3.2 of Standard No. 105-75, Hydraulic brake systems, would be satisfied by the use of a 4- to 8-second activation of the brake indicator lamp, activated when the ignition switch is placed in the "on" position. S5.3.2. requires:

S5.3.2 All indicator lamps shall be activated as a check of lamp function either when the ignition (start) witch is turned to the "on", (run) position when the engine is not running, or when the ignition (start) switch is in a position between "on" (run) and "start" that is designated by the manufacturer as a check position.

A 4- to 8-second activation when the ignition switch is placed in the "on" position as a check of brake indicator lamp function would satisfy the requirements of S5.3.2.

Yours truly,

Richard B. Dyson Acting Chief Counsel

ID: 86-1.37

TYPE: INTERPRETATION-NHTSA

DATE: 02/12/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Mr. R. O. Sornson

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. R. O. Sornson Director, Regulatory Research and Analysis Chrysler-Corporation P.O. Box 1919 Detroit, MI 48288

Dear Mr. Sornson:

This responds to your letter to Administrator Steed, asking this agency to "delay" its final selection of the Chrysler LeBaron GTS and Dodge Lancer car lines as "high theft lines" for the purposes of 49 CFR part 541, Federal Motor Vehicle Theft Prevention Standard. Section 603(a)(3) of the Motor Vehicle Information and Cost Savings Act (15 U.S.C. 2023(a)(3)) requires that all selections of lines initially introduced into commerce before the effective date of Part 541 (April 24, 1986) as high theft lines must be made final within one year after enactment of Title VI of the Cost Savings Act. Neither that statutory requirement nor the implementing regulations adopted by this agency contain any provision that would allow this agency to "delay" its final selection. Accordingly, your request is denied.

In accordance with 15 U.S.C. 2023(a)(3) and 49 CFR Part 542, the National Highway Traffic Safety Administration (NHTSA) informed Chrysler of its final selection of the LeBaron and Lancer lines as high theft lines by letter dated October 25, 1985. That letter was a final agency action on this question, again in accordance with 15 U.S.C. 2023(a)(3). There is no provision in the law allowing us to "delay" final selections, so there is no basis for entertaining your request.

You stated in your letter that the best test of whether a car line should be treated as a high theft line is its actual theft rate. We agree with that statement. However, it does not address the issue of how to treat car lines, such as your LeBaron GTS and Lancer, for which sufficient theft data are not available.

This agency has been told repeatedly by law enforcement groups that the theft rate for a car in its initial year of introduction is almost always lower than its theft rate in subsequent model years. This is because the vehicle population is relatively small, and experiences a lesser exposure to accidents and other damage than do lines which have been available for more than one model year. Accordingly, lines are less desirable targets for chop shops in their first year of introduction than they become in subsequent model years. Because of this phenomenon, NHTSA did not believe it appropriate to make selections of high theft lines based solely or primarily on preliminary theft data.

Under section 603(a)(3) of the Cost Savings Act, the agency was required to select not later than October 25, 1985, (one year after the date of enactment of Title VI of the Cost Savings Act) the high theft lines from among air lines introduced between January 1, 1983, and the effective date of the theft prevention standard. To meet this statutory deadline, NHTSA published a proposal to establish a new Part 542, Procedures for Selecting Lines to be Covered by the Theft Prevention Standard. at 50 FR 25603. June 20, 1985. Section 542.1 set forth six proposed criteria to be used in selecting likely high theft lines from lines such as the LeBaron GTS and the Lancer, which were introduced after January 1, 1983, and before the effective date of the theft prevention standard. These criteria were:

1. Retail price of the vehicle line.

2. Vehicle image or marketing strategy.

3. Vehicle lines with which the new line is intended to compete, and the theft rates of such lines.

4. Vehicle line(s), if any, which the new line is intended to replace, and the theft rate(s) of such line(s).

5. Presence or absence of any new theft prevention devices or systems. 6. Preliminary theft rate for the line, if it can be determined on the basis of currently available data.

Chrysler's comments on the proposal stated, "We generally concur with the proposed procedures. In our opinion the information which the NHTSA is requesting from manufacturers in order to establish anticipated theft rates for their various car lines appears reasonable." General Motors commented that the agency should adopt some weighting of these criteria, so that the process of selecting a line as a high theft line would be more objectively defined. General Motors specifically commented, "Probably the only criterion which could be used with any degree of certainty in selecting vehicles ... is theft data." In the final rule establishing Part 542, NHTSA responded to this comment as follows:

As noted in the NPRM, these judgments of likely high theft lines are partially subjective judgments. NHTSA concurs with GM's statement that neither price nor vehicle image alone can be strictly correlated to vehicle theft rates. However, NHTSA believes that the six criteria set forth in Appendix C considered together do form an objective basis for predicting if a new line is likely to be a high theft line. 50 FR 34831, at 34834, August 28, 1985.

NHTSA continues to believe that the six criteria form an objective basis for predicting if a new line is likely to be a high theft line. When these criteria were applied to the LeBaron GTS and Lancer lines, we concluded that criterion 1 did not point to the cars being either high or low theft, criteria 2 and 3 indicated the lines would be high theft, criteria 4 and 5 were not applicable, and criterion 6 indicated the cars would be low theft. On balance, then, the criteria indicate the lines will be high theft lines.

Accordingly, even if there were some authority to allow us to delay the October 25 final selections, we would still conclude that the LeBaron GTS and Lancer lines are likely high theft lines.

Sincerely,

Erika Z. Jones Chief Counsel

November 13, 1985

Ms. Diane K. Steed, Administrator National Highway Traffic Safety Administration 400 Seventh Street, S.W. Washington, DC 20590

RE: Request for Reconsideration, Final Determination of Car Lines Subject to Part 541

Dear Ms. Steed:

Chrysler Corporation hereby requests the NHTSA to delay its final ruling concerning the theft ratings of the Chrysler LeBaron GTS and the Dodge Lancer relative to Part 541 - Motor Vehicle Theft Prevention Standard. Existing theft data for the first six months of the 1985 calendar year clearly indicate these two car lines should not be on the high theft rate list. Additional theft data will be available soon and we believe the final decision on the theft ratings should be deferred until that data is available.

In keeping with the purpose of the law, the best test or whether a car line should be marked is its theft rate. In determining the theft rate of a car line, we believe it is much more realistic and reasonable to use the actual theft data results for that car line rather than to use subjective criteria such as image and suggested competitive car lines. Actual theft data for the full calendar year 1985 should be available from the NCIC by the middle of January. We propose that this actual theft data be used to determine the theft status of these two car lines.

In order to protect the slim lead time remaining for 1987 models, we shall continue preparations to mark the Chrysler LeBaron GTS and the Dodge Lancer. When the NCIC theft data becomes available in January, we request that the theft rate for these two car lines be recalculated to determine whether they remain below the median theft rate and therefore will not be required to have their parts marked.

Sincerely,

R. O. Sornson RSA/jal