NHTSA's Interpretation Files Search

ID: aiam0007

Dear Mr. Wilson: This is in reply to your letter of February 20, 1991 with respect to the acceptability under Federal law of your product, the 'Instant Traffic Light. I regret that we do not appear to have a record of your earlier letters to the agency on this subject. The 'Instant Traffic Light' is a four-section unit intended to perform three functions, each indicated by a different color. A green light appears when the accelerator is applied, an amber light when the accelerator is released, and a red light when the brakes are applied. The lamp's shipping carton shows the unit mounted on the rear parcel shelf behind the rear window. The text on the carton says that the lamp is easy to assemble. You have asked whether the product meets Standard No. 108, whether it would be 'legal' in the U.S. 'and her territories', and whether the product could replace, or be an option to, the requirements of Standard No. 108 for the center high-mounted stop lamp. Finally, of the l6 States that have responded to your inquiry, an equal number (six) have indicated that the lamp is and is not acceptable to them, while the remaining four 'said they will follow the Federal requirement.' Standard No. 108 does not permit the center high-mounted stop lamp to be combined with any other lamp. This means that your product could not be used as original equipment on a passenger car, whether as standard equipment or as an option, or marketed and sold as replacement equipment for a center lamp on a passenger car that was originally equipped with it. However, Standard No. 108 does not apply to the 'Instant Traffic Light' if it is marketed or sold exclusively for use on passenger cars that were not originally required to be manufactured with the center stop lamp, i.e., those cars that were manufactured before September 1, l985. Under this circumstance, the question of the legality of use of the device is to be determined by the laws of the individual States. The 'territories' are 'States' for purposes of this discussion. Since there is no legal prohibition under Federal law for installation of your lamp only on older passenger cars, we presume that the four States that reserved their decision would permit it on pre - l985 vehicles registered and/or operating within their borders. We are aware that, nevertheless, there may be some owner interest in replacing original equipment center stop lamps with your product. We would like to advise that such replacement would be a violation of the National Traffic and Motor Vehicle Safety Act, if performed by a manufacturer, distributor, dealer, or motor vehicle repair business. There is no such restriction upon a vehicle owner who performs the replacement of the lamp himself. I hope that this responds to your questions. Sincerely, Paul Jackson Rice Chief Counsel;

ID: aiam4834

Dear Mr. Wilson: This is in reply to your letter of February 20, 1991 with respect to the acceptability under Federal law of your product, the 'Instant Traffic Light. I regret that we do not appear to have a record of your earlier letters to the agency on this subject. The 'Instant Traffic Light' is a four-section unit intended to perform three functions, each indicated by a different color. A green light appears when the accelerator is applied, an amber light when the accelerator is released, and a red light when the brakes are applied. The lamp's shipping carton shows the unit mounted on the rear parcel shelf behind the rear window. The text on the carton says that the lamp is easy to assemble. You have asked whether the product meets Standard No. 108, whether it would be 'legal' in the U.S. 'and her territories', and whether the product could replace, or be an option to, the requirements of Standard No. 108 for the center high-mounted stop lamp. Finally, of the l6 States that have responded to your inquiry, an equal number (six) have indicated that the lamp is and is not acceptable to them, while the remaining four 'said they will follow the Federal requirement.' Standard No. 108 does not permit the center high-mounted stop lamp to be combined with any other lamp. This means that your product could not be used as original equipment on a passenger car, whether as standard equipment or as an option, or marketed and sold as replacement equipment for a center lamp on a passenger car that was originally equipped with it. However, Standard No. 108 does not apply to the 'Instant Traffic Light' if it is marketed or sold exclusively for use on passenger cars that were not originally required to be manufactured with the center stop lamp, i.e., those cars that were manufactured before September 1, l985. Under this circumstance, the question of the legality of use of the device is to be determined by the laws of the individual States. The 'territories' are 'States' for purposes of this discussion. Since there is no legal prohibition under Federal law for installation of your lamp only on older passenger cars, we presume that the four States that reserved their decision would permit it on pre - l985 vehicles registered and/or operating within their borders. We are aware that, nevertheless, there may be some owner interest in replacing original equipment center stop lamps with your product. We would like to advise that such replacement would be a violation of the National Traffic and Motor Vehicle Safety Act, if performed by a manufacturer, distributor, dealer, or motor vehicle repair business. There is no such restriction upon a vehicle owner who performs the replacement of the lamp himself. I hope that this responds to your questions. Sincerely, Paul Jackson Rice Chief Counsel;

ID: aiam2790

Dear Mr. Pare: This responds to your letter of February 16, 1978, asking whether th certification markings required on glazing materials by Safety Standard No. 205 must remain visible from the interior or exterior of a vehicle after installation.; The answer to your question is no. There is nothing in th certification requirements of section S6 of Standard No. 205 that requires the markings to remain visible after installation on the vehicle. As long as the glazing manufacturer has certified and marked his glazing in accordance with the standard and as long as these markings are not removed by the vehicle manufacturer there is no prohibition against covering the markings.; Sincerely, Joseph J. Levin, Jr., Chief Counsel

ID: aiam4829

Dear Mr. Lau: This is in reply to your letter of January 24, 1991 asking the agency for an opinion with respect to an 'additional brake lamp' that you manufacture and intend to export to the United States. You ask 'if there are any regulations, standards, or approval for this kind of product', and, further, 'does this product need to have any certificate or approval before it can be sold or installed?' Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices, and Associated Equipment, has required the additional stop lamp on all passenger cars manufactured on and after September 1, l985. The Standard specifies performance and minimum lens area requirements for the lamp, and these requirements must be met by any lamp that is used as original equipment on passenger cars, and by any lamp that is intended to replace a lamp orignally installed on a car manufactured on and after September 1, l985. If the lamp is intended as replacement equipment, its manufacturer must provide certification to the distributor or dealer of the lamp that the lamp meets Standard No. 108. For lighting equipment this certification may be in the form of a DOT symbol on the product, or a written statement on the packaging that the lamp meets all applicable Federal motor vehicle safety standards, or such other written certification as the lamp manufacturer may choose (e.g., an invoice). In addition, the lamp manufacturer must file an Identification Statement with the agency, and a foreign manufacturer must designate an agent in the United States upon which the agency may serve legal process should that be required. However, there is no requirement that a manufacturer obtain approval from the agency before exporting its certified product to the United States and selling it here. However, Standard No. 108 does not apply to an additional stop lamp that is intended for use in a passenger car manufactured before September 1, l985, and there is no requirement that it be certified as meeting Standard No. 108. Under this circumstance, we advise that the packaging for any such lamp should clearly state that it is not intended to replace an original equipment center lamp so that legal questions regarding its conformity with Federal requirements do not arise. Even though the lamp is not subject to Standard No. 108, its foreign manufacturer must designate an agent in the United States, as mentioned in the previous paragraph. An additional stop lamp for passenger cars manufactured before September 1, l985, is also subject to the laws of the individual States in which the lamp is sold and used. We are unable to advise you on these laws, and suggest that you write for an opinion to the American Association of MOtor Vehicle Administrators, 4600 Wilson Boulevard, Arlington, Va. 22203, USA. We enclose a copy of Standard No. 108 and of the SAE standard on supplementary stop lamps that is incorporated by reference. We are also enclosing copies of the Manufacturer Identification and Designation of Agent regulations, and of other materials that our Office of Vehicle Safety Compliance provides in response to inquiries of this nature. Questions on these materials should be addressed to that Office. Sincerely, Paul Jackson Rice Chief Counsel Enclosures;

ID: nht90-2.53

TYPE: Interpretation-NHTSA

DATE: May 25, 1990

FROM: Marc J. Fink and Stephen C. Crampton -- Dow, Lohnes & Albertson; Signature by S.C. Crampton

TO: Robert F. Hellmuth -- Director, Office of Vehicle Safety Compliance, NHTSA

TITLE: None

ATTACHMT: Attached to letter dated 9-20-90 from P.J. Rice to M.J. Fink (A36; Part 591)

TEXT:

We request your approval to allow John A. Rosatti to import his Porsche 959 into the United States as a "demonstration" car. Mr. Rosatti intends to use his car to promote business by displaying it in his automobile dealerships and, if approval from New York State authorities is obtained, a future, adjunct automobile museum. Mr. Rosatti does not intend to drive his car on the road at any time. If necessary to ensure that the Porsche 959 will not be driven on the road, Mr. Rosatti will agree to remove the engine from the car.

John Rosatti has been in the automobile business for twenty five years; for the last fifteen years, he has owned and operated Plaza Motors of Brooklyn, Ltd. ("Plaza"). 1/ Plaza's grounds consist of buildings totalling approximately 75,000 square feet an d cover two city blocks. Plaza holds Honda, Acura, and Oldsmobile dealerships, selling about 500 cars each month. Approximately 2000 to 3000 people come into Plaza every week.

1/ Copies of recent newspaper advertisements for Plaza are appended to this letter as Attachment A.

NHTSA's new regulations, implementing the Imported Vehicle Safety Compliance Act of 1988, provide a "demonstration" exemption from restrictions on imports of motor vehicles that do not comply with NHTSA safety requirements. 2/ As discussed below, Mr. Ro satti's proposed use of his Porsche 959 falls under the plain language of NHTSA's regulation and the statute. Indeed, his proposed use is consistent with uses mentioned in the Supplementary Information accompanying the new rules.

The Supplementary Information states as follows:

Importation for this class of noncomplying motor vehicles (i.e., demonstration vehicles) has been permitted pursuant to the assumption that motor vehicle safety would not be affected by the temporary importation of noncomplying motor vehicles not general ly used on the public roads, and whose appearance on them would be limited.

54 Fed. Reg. at 40,076. As stated above, Mr. Rosatti has no intention to drive the Porsche 959. In this regard, Mr. Rosatti is agreeable to whatever reasonable restrictions NHTSA may impose to insure the car is not driven. If NHTSA requires, Mr. Rosat ti will provide a written statement attesting to his promise not to drive the car. Furthermore, to insure

that the Porsche 959 could not be used on public roads by anyone, Mr. Rosatti, if required, will agree to remove the engine from the car.

2/ The Imported Vehicle Safety Compliance Act of 1988, 102 Stat. 2818, 2824 (to be codified at 15 U.S.C. S 1397(j)), provides that "(t)he Secretary may exempt any motor vehicle or item of motor vehicle equipment . . . upon such terms and conditions as t he Secretary may find necessary solely for the purpose of . . . demonstrations."

The NHTSA regulation implementing this provision of the statute, 54 Fed. Reg. 40,069, 40,080, as amended by 54 Fed. Reg. 49,098, 49,101 (1989) (to be codified at 49 C.F.R. S 591.5(j)), states as follows:

No person shall import a motor vehicle or item of motor vehicle equipment into the United States unless, at the time it is offered for importation, its importer files a declaration, in duplicate, which declares . . . (t)he vehicle or equipment item does not conform with all applicable Federal motor vehicle safety, bumper, and theft prevention standards, but it (sic) being imported solely for the purpose of . . . demonstrations.

Importantly, NHTSA's Supplementary Information specifically sanctions manufacturers' display of cars for commercial use. Id.3/ Like auto manufacturers, Mr. Rosatti intends to display his car to promote sales. The Porsche 959 would, he believes, serve a s a powerful attraction, drawing people to his automobile dealerships. Also like manufacturers, Mr. Rosatti will not drive the car. There is therefore no distinction between Mr. Rosatti's proposed use and the commercial display of a car by a manufactur er. NHTSA's own rationale and regulations dictate that permission be given to Mr. Rosatti to import his car for demonstration purposes.

Dealers like Mr. Rosatti depend heavily upon promotional campaigns to attract buyers; indeed, Plaza spends as much as $50,000 per month on promotional activities. Mr. Rosatti's promotional plan for the Porsche 959 specifically involves his Acura dealers hip.4/ Acura cars are advertised as high-quality, exciting, and inexpensive alternatives to fancy European sports cars. In fact, recent advertisements encourage car-buyers to trade in their expensive European cars for Acuras. In keeping with the Acura image, Mr. Rosatti intends to use his Porsche 959 to attract potential Acura buyers. As persons targeted for Acura sales are also likely to be interested in high-quality European sports cars, they will come to see a Porsche 959 on display. When they c ome, Mr. Rosatti will then have the opportunity to explain the benefits of his sporty, yet affordable, Acuras.

To implement his plan, Mr. Rosatti envisions running numerous advertisements in newspapers and on the radio, enticing potential car-buyers to come and see the Porsche 959. Initially, Mr. Rosatti intends to place the Porsche 959, along with his Ferrari T estarossa, Lamborghini Contach, specially built Porsche 935, and Mark IV Cobra, in a showroom on Plaza's premises. Preliminary estimates are that the automobile display could attract as many as 1000 additional persons per month to the dealerships. Thus , completely in line with NHTSA regulations, John Rosatti intends to import the Porsche 959 as a

commercial demonstration model.

3/ The Supplementary Information interprets "demonstration" cars as including "nonconforming products for display at automobile shows to gauge public reaction to new styling or engineering features." Id.

4/ Advertising proposals for the Acura/Porsche 959 advertising campaign are appended to this letter as Attachment B.

Mr. Rosatti, however, has a second interest in importing the Porsche 959, one that also accords entirely with the concept of a demonstration car. NHTSA's Supplementary Information manifests a concern that museums are not to be deprived of interesting and valuable items in their collection, stating that museums can import cars under the 25-year exception. Id. Mr. Rosatti's Porsche 959 is both interesting and valuable to automobile enthusiasts. Although Mr. Rosatti's car is less than 25 modelyears old and thus would not fit within the 25-year exception, its importation for use in a car museum conforms to the language and policy of the demonstration exemption.

Mr. Rosatti's museum will soon be ready for operation. Recently, the New York State Education Department recommended to the New York Board of Regents that Mr. Rosatti be issued a Provisional Charter to begin his museum. The Regents are scheduled to mee t soon and are expected to follow the Education Department's recommendation. The Provisional Charter is valid for three years and will be replaced by a permanent charter if the Education Department is satisfied with the progress of Mr. Rosatti's automob ile museum. When approval for the museum is received, Mr. Rosatti will convert a Plaza showroom into a museum for the Porsche 959 and his other valuable cars. Museums linked with commercial establishments are not uncommon. In many commercial establish ments, an ancillary museum, while not the main part of the business, serves as a major attraction for customers of the business.

Mr. Rosatti's motivations for wanting to import his Porsche 959 are simple. Mr. Rosatti is interested in combining his passion for automobiles and pride in his accomplishments in the automobile business with his commercial enterprise. To Mr. Rosatti, t he Porsche 959 and his other collector automobiles represent his success in the automobile industry, an industry to which Mr. Rosatti has devoted his working life. The Porsche 959 is the greatest trophy in his collection of cars. Mr. Rosatti naturally w ants to show off his cars, both for their commercial value and appeal and because they represent his achievements in the automobile industry.5/

Mr. Rosatti is very sensitive to NHTSA's concern that the Porsche 959 never be driven on American roads. Accordingly, Mr. Rosatti is prepared not simply to drain the engine of fluids, as you mentioned might be required in your letter of November 13, 198 9, but to remove the engine from the car. Thus, you can be completely assured that Mr. Rosatti's Porsche 959 will not be driven. Although Mr. Rosatti would prefer to display the engine next to the car, he is perfectly willing to display the engine at a separate location. Furthermore, Mr. Rosatti will gladly furnish periodic reports to NHTSA regarding the car's location and use.

To comply further with the conditions you suggested in your November 13 letter, Mr. Rosatti is willing to make a declaration that, if the Porsche is transferred by sale or inheritance, the new owner will be bound to keep the engine and body of the car se parate.

5/ To further exhibit his car, if permitted Mr. Rosatti would transport it to automobile shows, in particular, monthly Porche club shows and annual shows at the Jacob Javits Center.

In sum, the Imported Motor Vehicle Safety Compliance Act and NHTSA regulations provide a "demonstration" exemption from import bans to permit cars that will not be driven on the road to be imported for the purpose of demonstration. In this case, it woul d be contrary to the statute and NHTSA's regulations to deny Mr. Rosatti the opportunity to import his Porsche 959, especially as he offers to completely disable the car to satisfy NHTSA. Mr. Rosatti is not attempting to circumvent the law. He is simpl y a man who loves cars. Surely the law does not prevent him from collecting and showing trophies of his trade.

Therefore, we ask that you grant prior written permission for Mr. John A. Rosatti to import his Porsche 959 into the United States for the purpose of demonstration.

ID: nht88-4.43

TYPE: INTERPRETATION-NHTSA

DATE: 12/19/88 EST

FROM: ERIKA Z. JONES -- NHTSA CHIEF COUNSEL

TO: AMIT REIZES

TITLE: NONE

ATTACHMT: APRIL 6, 1988 LETTER FROM REIZES TO STEED AND SEPTEMBER 1987 ISSUE OF "CONSUMER INFORMATION"

TEXT: This responds to your letter to Administrator Steed asking this agency to require motor vehicle manufacturers to install air bags in all cars sold in this country. You asserted that such a requirement would both further motor vehicle safety and be cost effective. I am pleased to have this opportunity to clarify your understanding of our requirements for automatic crash protection.

Former Secretary of Transportation Dole announced a final decision on occupant crash protection on July 17, 1984. Although you may be familiar with many of the elements of that decision, I believe it would be helpful to review briefly that decision. Th is decision provides a comprehensive approach designed to save as many lives as quickly as possible. In the near term, the decision asked the individual States to consider passing mandatory safety belt use laws. We believe that effectively enforced Sta te laws requiring the proper use of safety belts offer our best opportunity to save lives today at virtually no cost to the consumer. The decision also reflects our belief in the value of automatic occupant protection systems, such as air bags and autom atic safety belts, by requiring all new cars to be equipped with automatic occupant protection starting with the 1990 model year. The automatic protection requirement is phased in during the preceding three years. For example, 40 percent of all 1989 mo del year vehicles must be equipped with automatic occupant protection.

To encourage manufacturers to offer a range of automatic restraint technologies, the decision provides extra credit for cars equipped with innovative automatic protection, such as air bags. We hope to see a substantial number of air bags available by th e 1990 model year. The decision also specifies that, if States with two-thirds of the U.S. population enact effective safety belt use laws by early 1989, the requirements for automatic protection will no longer apply. In either event, motorists will be assured of substantially improved crash protection.

To address your special concerns, then, there is a requirement that all 1990 and later model year cars be equipped with automatic occupant protection. However, this requirement does not make air bags mandatory. Instead, manufacturers are permitted to i nstall any automatic occupant restraint technology that meets the occupants protection requirements. Thus, occupants may be protected by automatic safety belts (i.e., belts that require no action on the part of the occupant of be effective), air bags, o ther technologies such as "passive interiors," or any combination of these technologies.

The option for manufacturers to use any of the various forms of automatic restraints was based on the fact that these restraints have been shown to be comparably effective. Based on the currently available information, I believe that consumers who prefe r air bags, such as yourself, will have the opportunity to purchase a wide variety of 1990 model year cars equipped with air bags. Similarly, those consumers that prefer automatic safety belts will have the opportunity to purchase a variety of 1990 model year cars equipped with the type of automatic restraint system they prefer.

Presently, eleven foreign and domestic manufacturers offer driver-side and/or passenger side air bags as standard or optional equipment. By MY 1990, domestic manufacturers plan to increase the installation of air bags on selected lines. For example, by MY 1990, Ford plans to install air bags in one million cars; General Motors in 500,000 cars; and Chrysler in 700,000 to 900,000 cars. In addition, for MY 1989, Chrysler expects to equip 200,000 vehicles with driver-side air bags. Several foreign manufa cturers who do not now offer air bags have plans to do so by 1990.

I also am enclosing a consumer information brochure concerning air bags. I hope that this information is helpful. If you have any further questions on this topic, please do not hesitate to contact me.

ID: 1985-04.12

TYPE: INTERPRETATION-NHTSA

DATE: October 30, 1985

FROM: NHTSA

TO: K. Douglas Scribner -- Mini City, Ltd.

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your recent letter seeking an interpretation of Standard No. 109, New Pneumatic Tires -- Passenger Cars (49 CFR @ 571.109). Specifically, you were interested in learning whether that standard applies to tires for use on "antique and classic automobiles." You stated that your firm deals in tires which are authentic replacement tires for antique and classic cars, and that none of those tires has ever been marked with a DOT number. Standard No. 109 requires that all new pneumatic tires for use on passenger cars manufactured after 1948 be marked with DOT numbers, among other things, and there is no exception to this requirement for tires designed for "classic" cars.

It is unclear when you refer to a "DOT number" whether you are referring to just the tire identification number, which is required to appear on all new tires for use on passenger cars manufactured after 1948 by 49 CFR Part 574, Tire Identification and Recordkeeping, or that identification number together with the symbol "DOT." The DOT symbol is a certification by the tire manufacturer that the tire complies with all the requirements of Standard No. 109. I have enclosed copies of both Standard No. 109 and Part 574 for your information.

In any event, Standard No. 109 applies to all new pneumatic tires for use on passenger cars manufactured after 1948. Section S4.3.1 of the standard requires the DOT symbol to be permanently marked on the tire, while section S4.3.2 requires the tire identification number assigned to a manufacturer in accordance with Part 574 to be permanently marked on the tire. Standard No. 109 contains no provisions making an exception to these requirements.

Accordingly, if the antique and classic cars to which you refer were manufactured in or before 1948, the tires are not subject to Standard No. 109 or Part 574. Sales of such tires would not violate any of this agency's requirements.

If, however, the tires are designed for use on cars manufactured after 1948, the tires must comply with all requirements of Standard No. 109, including the requirements to have a DOT symbol and a tire identification number marked permanently on the sidewall. If you sell tires which are subject to, but do not comply with, the requirements of Standard No. 109, you would violate section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1397(a)(1)(A)). Section 109 of that Act (15 U.S.C. 1398) specifies a maximum civil penalty of $ 1,000 for each violation of section 108, and this agency would consider each sale of a noncomplying tire to be a separate violation.

If you need any further information on this subject, please contact Steve Kratzke of my staff at this address or by telephone at (202) 426-2992.

Sincerely,

Enclosures

ATTACH.

Mini City Ltd.

SEPTEMBER 16, 1985

JEFFREY R. MILLER -- Office of Chief Council, National Highway Traffic Safety Administration

Further to conversations with your office today, regarding DOT Standard 109 and its application to our marketing of tires for antique and classic automobiles, I am writing to request a copy of the "interpretation book" which will explain qualifying exceptions or exemptions.

Basicall, we have dealt, and wish to continue dealing, in tires which are obsolete in nature (non-radial, odd sizes, etc.) but which are necessary for authentic replacement tires on antique and classic cars.

Some of these are still supplied by their original manufacturers (Firestone, Goodyear, Dunlop, etc.) and some are reproductions made from original molds (Denman, Lucas, etc.). None of these have ever carried DOT numbers.

I look forward to your reply at your early convenience.

Sincerely,

K. Douglas Scribner -- President

ID: 1985-04.16

TYPE: INTERPRETATION-NHTSA

DATE: 11/07/85

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Mr. K. Douglas Scribner

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. K. Douglas Scribner President Mini City Ltd. 876 Turk Hill Road Fairport, NY 14450 Dear Mr. Scribner:

This responds to your recent letter seeking an interpretation of Standard No. 109, New Pneumatic Tires--Passenger Cars (49 CFR S571.109). Specifically, you were interested in learning whether that standard applies to tires for use on "antique and classic automobiles." You stated that your firm deals in tires which are authentic replacement tires for antique and classic cars, and that none of those tires has ever been marked with a DOT number. Standard No. 109 requires that all new pneumatic tires for use on passenger cars manufactured after 1948 be marked with DOT numbers, among other things, and there is no exception to this requirement for tires designed for "classic" cars.

It is unclear when you refer to a "DOT number" whether you are referring to just the tire identification number, which is required to appear on all new tires for use on passenger cars manufactured after 1948 by 49 CFR Part 574, Tire Identification and Recordkeeping, or that identification number together with the symbol "DOT." The DOT symbol is a certification by the tire manufacturer that the tire complies with all the requirements of Standard No. 109. I have enclosed copies of both Standard No. 109 and Part 574 for your information.

In any event, Standard No. 109 applies to all new pneumatic tires for use on passenger cars manufactured after 1948. Section S4.3.1 of the standard requires the DOT symbol to be permanently marked on the tire, while section S4.3.2 requires the tire identification number assigned to a manufacturer in accordance with Part 574 to be permanently marked on the tire. Standard No. 109 contains no provisions making an exception to these requirements.

Accordingly, if the antique and classic cars to which you refer were manufactured in or before 1948, the tires are not subject to Standard No. 109 or Part 574. Sales of such tires would not violate any of this agency's requirements.

If, however, the tires are designed for use on cars manufactured after 1948, the tires must comply with all requirements of Standard No. 109, including the requirements to have a DOT symbol and a tire identification number marked permanently on the sidewall. If you sell tires which are subject to, but do not comply with, the requirements of Standard No. 109,you would violate section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act (15 U.S.C. 1397(a)(1)(A)). Section 109 of that Act (15 U.S.C. 1398) specifies a maximum civil penalty of $1,000 for each violation of section 108, and this agency would consider each sale of a noncomplying tire to be a separate violation.

If you need any further information on this subject, please contact Steve Kratzke of my staff at this address or by telephone at (202) 426-2992. Sincerely, Erika Z. Jones Chief Counsel Enclosures

National Highway Traffic Safety Administration Room 5219 400 Seventh Street S.W. Washington DC 20590 Attn: Jeffrey R. Miller

Further to conversations with your office today, regarding DOT Standard 109 and its application to our marketing of tires for antique and classic automobiles, I am writing to request a copy of the "interpretation book" which will explain qualifying exceptions or exemptions.

Basically, we have dealt, and wish to continue dealing, in tires which are obsolete in nature (non-radial, odd sizes, etc.) but which are necessary for authentic replacement tires on antique and classic cars.

Some of these are still supplied by their original manufacturers (Firestone. Goodyear, Dunlop, etc.) and some are reproductions made from original molds (Denman, Lucas, etc.). None of these have ever carried DOT numbers.

I look forward to your reply at your early convenience. Sincerely, K. Douglas Scribner President KDS:se

ID: nht90-4.50

TYPE: Interpretation-NHTSA

DATE: October 30, 1990

FROM: Marc J. Fink -- Dow, Lohnes & Albertson; Stephen C. Crampton -- Dow, Lohnes & Albertson

TO: Samuel K. Skinner -- Secretary, United States Department of Transportation

TITLE: Re Review of Arbitrary and Capricious Action by the National Highway Traffic Safety Administration

ATTACHMT: Attached to letter dated 1-3-91 to Stephen C. Crampton and Marc J. Fink from Jerry Ralph Curry (A37; Part 591; Sec 1397); Also attached to memo dated 10-31-90 from Toni Fargo to NHTSA

TEXT:

We are writing to ask you to reverse an arbitrary and capricious action by NHTSA and approve John A. Rosatti's proposed importation of his Porsche 959 as a "demonstration" vehicle. Mr. Rosatti's proposed uses for the car, as a promotional tool and addit ion to his automobile museum, are entirely consistent with the "demonstration" exemption, as codified by Congress and implemented by NHTSA. To assuage any concerns that the Porsche 959 will ever be driven on United States highways, Mr. Rosatti agrees to provide a written promise that the car will not be driven on any road or highway in the United States and that he will not sell the car to any United States resident. Mr. Rosatti also agrees to remove the engine from the car and take whatever other rea sonable actions may be required to satisfy NHTSA's concerns that the car not be driven on United States highways.

We find it necessary to appeal to you, Mr. Secretary, because we believe NHTSA's denial of Mr. Rosatti's request was arbitrary and capricious. Mr. Rosatti is considering a legal challenge to NHTSA's action, but would prefer to settle this matter without the unnecessary burden for both parties of a potentia lly protracted litigation.

We have the following objections to NHTSA's ruling: NHTSA's action is unrelated to its statutory mandate to "increase highway safety." NHTSA has failed to consider or discuss in any way Mr. Rosatti's proposed inclusion of the Porsche 959 in his automobi le museum. NHTSA has articulated an untenable interpretation of the "demonstration" exemption. Finally, and importantly, NHTSA's decision to allow another person to import a Porsche 959 for a museum while denying Mr. Rosatti's proposed importation for the same purpose is arbitrary and capricious.

John Rosatti has been in the automobile business for twenty five years; for the last fifteen years, he has owned and operated Plaza Motors of Brooklyn, Ltd.(1) Plaza Motors's grounds consist of buildings totalling approximately 75,000 square feet and co ver two city blocks. Plaza Motors holds Honda, Acura, and Oldsmobile dealerships, selling about 500 cars each month. Approximately 2000 to 3000 people come into Plaza Motors every week.

Dealers like Mr. Rosatti depend heavily upon promotional campaigns to attract buyers; indeed, Plaza Motors spends as much as $50,000 per month

on promotional activities. Mr. Rosatti's promotional plan for the Porsche 959 specifically involves his Acura dealership.(2) Acura cars are advertised as high-quality, exciting, and inexpensive alternatives to fancy European sports cars. Recent advert isements encourage car-buyers to trade in their expensive European cars for Acuras. In keeping with the Acura image, Mr. Rosatti intends to use his Porsche 959 to attract potential Acura buyers. As persons targeted for Acura sales are also likely to be interested in high-quality European sports cars, they will come to see a Porsche 959 on display. When they come, Mr. Rosatti will then have the opportunity to explain the benefits of his sporty, yet affordable, Acuras.

To implement his promotional plan, Mr. Rosatti envisions running numerous advertisements in newspapers and on the radio, enticing potential car-buyers to come and see the Porsche 959. Mr. Rosatti intends to place the Porsche 959, along with his Ferrari Testarossa, Lamborghini Contach, Specially built Porsche 935, and Mark IV Cobra, in a museum located on Plaza Motors's premises. Preliminary estimates are that such an automobile demonstration could attract as many as 1000 additional persons per month t o the dealerships. Completely in line with NHTSA regulations, John Rosatti intends to import the Porsche 959 as a commercial demonstration model.

NHTSA's new regulations, implementing the Imported Vehicle Safety Compliance Act of 1988, provide a "demonstration" exemption from restrictions on imports of motor vehicles that do not comply with NHTSA safety requirements.(3) " Mr. Rosatti's proposed us e of his Porsche 959 falls under the plain language of NHTSA's regulation and the statute. Indeed his proposed use is consistent with uses mentioned in the Supplementary Information accompanying the new rules.

The Supplementary Information accompanying NHTSA regulations states as follows:

Importation for this class of noncomplying motor vehicles (i.e., demonstration or display vehicles) has been permitted pursuant to the assumption that motor vehicle safety would not be affected by the temporary importation of noncomplying motor vehicles not generally used on the public roads, and whose appearance on them would be limited.(4)

NHTSA's Supplementary Information specifically sanctions automobile manufacturers' display of cars for commercial use.(5) Like manufacturers, Mr. Rosatti intends to display his car to promote sales. The Porsche 959 would, he believes, serve as a powerf ul attraction, drawing people to his automobile dealerships. Also like manufacturers, Mr. Rosatti will not drive the car. There is therefore no distinction between Mr. Rosatti's proposed use and the commercial display of a car by an automobile manufact urer. NHTSA's own rationale and regulations dictate that permission be given to Mr. Rosatti to import his car for demonstration purposes.

Mr. Rosatti also has a second interest in importing the Porsche 959, one that also accords entirely with the concept of a demonstration car. NHTSA's Supplementary Information manifests a concern that museums are not

to be deprived of interesting and valuable items in their collection, stating that museums can import cars under the 25-year exception.(6) Mr. Rosatti's Porsche 959 is both interesting and valuable to automobile enthusiasts. Although Mr. Rosatti's car i s less than 25 model-years old and thus would not fit within the 25-year exception, its importation for use in a car museum conforms to the language and policy of the demonstration exemption.

Mr. Rosatti's motivations for wanting to import his Porsche 959 are simple. Mr. Rosatti is interested in combining his passion for automobiles and pride in his accomplishments in the automobile business with his commercial enterprise. To Mr. Rosatti, th e Porsche 959 and his other collector automobiles represent his success in the automobile industry, an industry to which Mr. Rosatti has devoted his working life. The Porsche 959 is the greatest trophy in his collection of cars. Mr. Rosatti naturally w ants to show off his cars, both for their commercial value and appeal and because they represent his achievements in the automobile industry.(7)

NHTSA's mandate is to "increase highway safety,"(8) but NHTSA fails to explain how highway safety is threatened by Mr. Rosatti's proposed importation. Mr. Rosatti informed NHTSA in his letter-request that he will agree to any reasonable restriction rega rding his use of the Porsche 959 in the United States. Mr. Rosatti has stated that he is willing to remove the engine from the car and display it in a separate area of the museum, apart from the car body. Mr. Rosatti further has agreed to sign a writte n attestation that he will not drive the car nor sell it to a United States resident.(9) However, in its response to Mr. Rosatti's request, NHTSA refused to discuss the reasonableness of Mr. Rosatti's proposed self-imposed restrictions and failed to sug gest any alternative reasonable restrictions on Mr. Rosatti's use of the Porsche 959 in the United States. NHTSA's action is thus unrelated to NHTSA's mandate.

Mr. Rosatti hand-delivered his request upon NHTSA on May 25, 1990. It took four months for NHTSA to respond to Mr. Rosatti's request and, despite the fact that the New York State Board of Education chartered his museum, NHTSA failed to refer to Mr. Rosa tti's proposed museum in its September 20, 1990 response. We are enclosing (as Attachment C) a copy of Mr. Rosatti's May 25, 1990 request, our letter of September 18, 1990, with the enclosed letter from the New York Education Department and the vote ado pting the charter, and NHTSA's September 20, 1990 response to Mr. Rosatti's request.(10) NHTSA's belated response and failure to address a major argument in favor importing Mr. Rosatti's Porsche 959 is arbitrary and capricious.(11)

Further, NHTSA's interpretation of the "demonstration" exemption is untenable. NHTSA asserts that demonstration does not encompass "static display" and thus differs from the "show" exemption in earlier regulations. The term demonstration, however, come s from the Latin demonstrare 'to show'.(12) Also, the definition of demonstration includes "display." On its face, therefore, the term demonstration encompasses display in a museum. Indeed, there is absolutely no evidence that Congress or NHTSA intend ed to effect a major change in the exemption through a mere exchange of synonyms. NHTSA states in its letter that the Imported Vehicle

Safety Compliance Act of 1988 changed the law in an attempt to reduce the "number of nonconforming vehicles . . . imported into the United States without sufficient assurances or evidence that they were being brought into compliance with all applicable F ederal safety standards." However, the Act was not directed primarily toward "show" or "demonstration" cars, but toward imports that are to be brought into conformance with NHTSA standards. As NHTSA's Supplementary Information to the current regulatio ns confirms, "(t)his is the category of motor vehicle that is most affected by the 1988 amendments."(14)

NHTSA's interpretation would render the "demonstration" exemption duplicative and irrelevant, and clearly Congress did not intend that. In its letter, NHTSA states the following:

(W)ith respect to the new regulation, we have interpreted the word "demonstration" only in the context of allowing importation of nonconforming vehicles by registered importers who wish to prove, or demonstrate, that the vehicle is capable of conformance modification under one of the provisions of 1397 (c) (3) (A) (i).

Nothing in the Act or NHTSA regulations suggests such an interpretation. If a registered importer can prove that its vehicle is capable of modification under 49 C.F.R. S 1397 (c) (3) (a) (i) (1989), then the vehicle is exempt under that section and the " demonstration" exemption is duplicative. If, on the other hand, NHTSA is suggesting that the demonstration exemption is actually a procedural rule of proof for persons seeking exemption under 49 C.F.R. S 1397 (c) (3) (a) (i) , then that interpretation l ikewise conflicts with the Act. The Act explicitly provides procedures for importing a car under Section 1397 (c) (3) (a) (i): the importer furnishes a bond and complies with "such terms and conditions as it appears to the Secretary (of the Treasury) to be appropriate."(15) Indeed, the Act goes on to provide a calculation for the bond, procedures for persons whose registration has been revoked, a requirement that the importer maintain custody of the car, a label requirement, and a requirement that eac h registered importer maintain evidence that it has resources to complete the modification.(16)

Not only is NHTSA's interpretation of the exemption contrary to law, but its application to John Rosatti is arbitrary. Recently, NHTSA granted a "demonstration" exemption to Otis Chandler allowing importation of a Porsche 959.(17) NHTSA allowed Mr. Cha ndler to include his Porsche 959 in his automobile museum collection in Oxnard, California. Yet, John Rosatti's application for prior approval to use the same car in the same circumstances yields a different result. As mentioned before, the New York St ate Board of Regents has granted a charter for Mr. Rosatti's car museum. Mr. Rosatti has provided NHTSA with proposed promotional materials for his museum and has named the other cars that will form the initial museum collection: a Ferrari Testarossa, L amborghini Contach, specially built Porsche 935, and Mark IV Cobra. NHTSA has failed to explain why Mr. Rosatti's proposed importation is different from Mr. Chandler's.

Mr. Rosatti is not asking for special treatment. Mr. Rosatti asks only that the proposed importation of his Porsche 959 be fairly considered and that he be treated like other Porsche 959 importers. Mr. Rosatti has

offered proof of his intention never to drive the Porsche 959 in the United States and, indeed, welcomes any necessary further inquiry into his proposed use of the Porsche 959. Mr. Rosatti has agreed to remove the engine from the car and to provide a wr itten promise that the car never will be driven in the United States. New York State has chartered Mr. Rosatti's automobile museum. In light of these facts, uncontroverted by NHTSA, Mr. Rosatti's proposed use of the Porsche 959 falls within the meaning and the policy of the "demonstration" exemption. We therefore respectfully request that you reverse NHTSA's determination on the issue and approve Mr. Rosatti's proposed importation.

Footnotes: (1) Copies of recent newspaper advertisements for Plaza are appended to this letter as Attachment A.

(2) Advertising proposals for the Acura/Porsche 959 advertising campaign are appended to this letter as Attachment B.

(3) The Imported Vehicle Safety Compliance Act of 1988, 102 Stat. 2818, 2824 (to be codified at 15 U.S.C. 1397 (j)), provides that "(t) he Secretary may exempt any motor vehicle or item of motor vehicle equipment... upon such terms and conditions as the Secretary may find necessary solely for the purpose of ... demonstrations." The NHTSA regulation implementing this provision of the statute, 49 C.F.R. 591.5 (j) (1989), states as follows: No person shall import a motor vehicle or item of motor vehicle equipment into the United States unless, at the time it is offered for importation, its importer files a declaration, in duplicate, which declares...(t) he vehicle or equipment item does not conform with all applicable Federal motor vehicle safety, bumper, and theft prevention standards, but it (sic) being imported solely for the purpose of ...demonstrations.

(4) 54 Fed. Reg. 40,069, 40,076 (Sept. 23, 1989).

(5) The Supplementary Information interprets "demonstration" cars as including "nonconforming products for display at automobile shows to gauge public reaction to new styling or engineering features." Id.

(6) Id.

(7) To further exhibit his car, if permitted Mr. Rosatti would transport it to automobile shows, in particular, monthly Porsche-club shows at the Jacob Javits Center.

(8) See 23 U.S.C. 401 (1988); 49 U.S.C. 105(c) (1) (1988).

(9) Indeed, the value of the car as a collector's item would be seriously diminished if it were to be driven on roads surrounding Mr. Rosatti's dealership in New York City.

(10) We are also enclosing (as Attachment D) a letter, dated September 27, 1990, from another NHTSA official, offering "(o) ne last thought on a matter that may not be covered (in the September 20, 1990 letter, regarding)...importation for museum purpose s." This letter, written by a

NHTSA official outside the NHTSA Chief Counsel's office, states without analysis that museums may only import cars over 25 years old. This conclusory museums may only import cars over 25 years old. This conclusory statement hardly constitutes an adequa te response by NHTSA to Mr. Rosatti's proposed museum. This is especially so in light of the fact that NHTSA recently allowed another automobile-museum owner to import a car less than 25 years old. See infra p. 7.

(11) See 5 U.S.C. 555 (e) (1988) (agency required to give prompt notice of and grounds for denial of an informal request).

(12) Webster's Ninth New Collegiate Dictionary at 338 (1988). As NHTSA apparently adopted Webster's definition of show, there is no reason not to adopt its authority on the meaning of demonstration. In its letter, NHTSA states that it defines show as " to cause to be seen," Attachment C at 14; Webster's first definition of show is "to cause or permit to be seen." Webster's Ninth New Collegiate Dictionary at 1091.

(13) Id. at 338.

(14) 54 Fed. Reg. 40,069, 40,073 (Sept. 23, 1989).

(15) 102 Stat. 2818 (to be codified at 15 U.S.C. 1397 (c) (2)).

(16) Id. at 2818-22 (to be codified at 15 U.S.C. 1397 (c) (2) (B) to 1397 (d) (2)).

(17) Attachment E to this letter is a copy of Colman, The Vigil, Excellence Magazine, October, 1990, at 60, chronicling Mr. Chandler's importation of a Porsche 959.

ID: aiam5581

Dear Mr. Tunick: This responds to your request for the agency t clarify the requirements of 49 CFR 575.101, which until recently required manufacturers to disclose information about the stopping performance of passenger cars and motorcycles. In particular, you asked how the requirement would apply to vehicles certified to comply with Federal Motor Vehicle Safety Standard No. 135, Passenger Car Brake Systems. I am enclosing a copy of a June 26, 1995, final rule in which the National Highway Traffic Safety Administration (NHTSA) rescinded section 575.101 (60 FR 32918). As a result of this decision, a vehicle manufacturer is no longer required to furnish information about the stopping performance of passenger cars and motorcycles. I hope this information is helpful to you. Should you have any questions or need additional information, please feel free to contact Marvin Shaw of my staff at this address or at (202) 366-2992. Sincerely, John Womack Acting Chief Counsel Enclosure;