Interpretation ID: aiam5423
Inc. BMW Plaza Montvale
NJ 07645-1866;
"Dear Mr. Ziwica: This responds to your request that the Nationa Highway Traffic Safety Administration (NHTSA) determine that a proposed modification to a previously approved antitheft device on the BMW 7 car line constitutes a de minimis change to the device. The proposed modification is to be effective beginning with the 1995 Model Year (MY). As explained below, the agency concludes that the proposed change to the antitheft device is not a de minimis change. In a Federal Register notice dated October 9, 1986 (51 FR 3633), NHTSA determined that the antitheft device installed as standard equipment on the MY 1988 BMW 7 car line was likely to be as effective as parts marking. In assessing whether changes are de minimis, the agency has focused its inquiry on whether the changed device would continue to provide the same aspects of performance as did the device on which the exemption was based. An example of a de minimis change is the substitution of new components for old components, without changing the aspects of performance provided by the device. NHTSA has also determined that adding a new aspect of performance, making an exempted antitheft device even more effective, while leaving the original aspects undisturbed, is a de minimis change. The change from the original BMW MY 1988 antitheft device to the one proposed for the MY 1995 BMW 7 car line does not present a simple case of either substituting new components for old, without changing the aspects of performance provided, or enhancing the effectiveness of an existing device, by adding a new aspect. Instead, the change is more complex, involving not only the addition of a new aspect (monitoring glass breakage), but also the deletion of some original aspects (monitoring the radio and glove box). The agency is uncertain about the net effect of these changes and is therefore also uncertain whether the new modified device would be at least as effective as the original device. Monitoring glass breakage might decrease the likelihood that a would-be thief would ever enter a vehicle. On the other hand, adding this aspect of performance would not necessarily enhance effectiveness of the antitheft device. If a thief were to gain access to the passenger compartment with a slim-jim or other tool, without breaking the glass, no alarm would sound, making the inside compartment vulnerable to theft. Further, no alarm would sound if the thief then tampered with the radio or glove box, individually. NHTSA believes that the necessity for making judgments about the relative effectiveness of new and removed aspects of performance, and the complexity of the issues underlying those judgments, indicate that the changes are not de minimis. Indeed, these judgments are similar to the ones that the agency must make in considering a new petition for exemption. Accordingly, if BMW wishes the planned MY 1995 device to be the basis for a theft exemption, it must submit a petition with NHTSA pursuant to 49 CFR 543.9(c)(2). Please note that the petition for modification must provide the same information or the modified device as is required under 543.6 for a new device. This includes the statement in 543.6(a)(1) that the antitheft device will be installed as standard equipment on all cars in the line for which an exemption is sought. If you have any questions, please contact Barbara Gray or Rosalind Proctor on (202) 366-1740. Sincerely, Barry Felrice Associate Administrator for Rulemaking";