ID: nht75-5.35

DATE: 02/06/75

FROM: AUTHOR UNAVAILABLE; John Womack; NHTSA

TO: Gibson; Darden and Hotchkiss

TITLE: FMVSR INTERPRETATION

ID: nht75-5.36

DATE: 11/05/75

FROM: AUTHOR UNAVAILABLE; Frank A. Berndt; NHTSA

TO: Glascock; Ballon; Vorder; Bruegge & Friedman

TITLE: FMVSR INTERPRETATION

TEXT: This is in response to your letter of October 14, 1975, to Ms. Karen Kreshover, of this office, asking if there have been any previous interpretations of Section 580.5(b) of 49 CFR Part 580, Odometer Disclosure Requirements, indicating that new car dealers must provide odometer disclosure statements to purchasers of new vehicles. Your question was prompted by a September 17, 1975, letter from this agency to Mr. William C. Koch, advising him that a new vehicle dealer must complete disclosure statements for all vehicles he transfers to persons who are taking possession for purposes other than reselling the vehicles.

Although the National Highway Traffic Safety Administration takes the position that section 580.5(b) clearly expresses the requirement that new vehicle dealers must execute odometer disclosure statements when transferring new vehicles to individuals purchasing them for purposes other than resale, it has on two previous occasions explicitly pointed out this responsibility in correspondence. Copies of these two letters are enclosed for your information.

ID: nht75-5.37

DATE: 09/17/75

FROM: AUTHOR UNAVAILABLE; Frank A. Berndt; NHTSA

TO: William C. Koch; Assistant Attorney General for Consumer Protection

TITLE: FMVSR INTERPRETATION

TEXT: As you requested in your August 29, 1975, telephone conversation with Karen Kreshover of this office, I am forwarding to you an interpretation of Section 580.5(b) of 49 CFR Part 580, Odometer Disclosure Requirements, as it applies to new car dealers.

Section 580.5(b) states that an odometer disclosure form need not be executed by transferors of new vehicles before their first transfer for purposes other than resale. This means that a distributor of new vehicles is not required to provide a dealer with odometer disclosure statements for vehicles he transfers to him. A new vehicle dealer, however, must complete disclosure statements for all vehicles he transfers to persons who are taking possession for purposes other than reselling the vehicles. In other words, even a new vehicle which has not been previously sold to a consumer must have its odometer mileage certified in compliance with the odometer disclosure requirements when it is transferred.

ID: nht75-5.38

DATE: 11/18/75

FROM: AUTHOR UNAVAILABLE; Frank A. Berndt; NHTSA

TO: Georgia Automobile Dealers Association

TITLE: FMVSR INTERPRETATION

TEXT: This is in response to your letter of September 19, 1975, inquiring as to the disclosure responsibilities of an individual who sells a vehicle with a nonoperational odometer.

You describe a situation in which a dealer executed an odometer disclosure statement indicating that the actual odometer mileage was unknown where the odometer was nonfunctional. Apparently, the purchaser now claims sale of the vehicle with such an odometer inaccuracy constitutes misrepresentation by the dealer.

Based upon the facts of the case as you have presented them, the National Highway Traffic Safety Administration (NHTSA) does not consider that a violation of the odometer requirements of the Motor Vehicle Information and Cost Savings Act (Pub. L. 92-513) has occurred. If the dealer in question executed an odometer disclosure statement, at the time of sale, that complies with the Federal disclosure requirements (49 CFR Part 580, Odometer Disclosure Requirements), and states that the mileage indicated on the odometer differs from the true mileage for reasons other than calibration error he satisfied his responsibilities under the law. The buyer was informed that the odometer mileage was incorrect and therefore should not be relied upon as an indication of the vehicle's condition.

As long as a seller informs his buyer as to the validity of the odometer mileage, he has no additional responsibility to repair an apparently nonfunctional odometer.

SINCERELY,

GEORGIA AUTOMOBILE DEALERS Association

September 19, 1975

Karen Kreshover, Esq. Office of Chief Counsel NHTSA

Mr. Dave Hunt, of the National Automobile Dealers Association, has requested that I write to you on behalf of one of our members. His problem concerns whether the odometer has to be in working condition at the time of a retail sale on a used car.

I have received the following narrative from the dealer concerning his difficulty.

Customer traded in a car and signed an Odometer Disclosure Form that the mileage was correct. The car was later retailed, and upon finding the odometer was not working due to the fact that the odometer reading at the time of the retail was still the same as it was at the time it was traded in -- the dealer's Disclosure Statement showed the mileage unknown -- the odometer was not working at the time of retail sale. A rubber stamp, with large letters, was used showing "as is", with the customer initialing under the wording "as is". The dealer does this on all his sales as part of the information on his bill of sales, along with the motor number, serial number and description of the car. He includes a line that shows mileage. The dealer has always displayed mileage, even before there was an Odometer Disclosure Law. On the Bill of Sale, where the dealer had written in the mileage, it was also marked (non certified). Some time later, within about 30 days, the customer complained of a problem in the transmission and wanted the dealer to repair it. The dealer refused because the vehicle was sold as an "as is" sale. The customer had the transmission repaired elsewhere, at his own expense. Now, the customer wants the dealer to reimburse him for the cost of the repairs because it is obvious that the mileage that appears on the odometer is lower than the actual mileage. The customer is basing his claim on misrepresentation at the time the car was purchased, even though he was made aware that the odometer could not be certified and the odometer was not working at the time of purchase.

Please inform me of your decision as soon as possible.

William F. Morie

Executive Vice President

H. Calvin Stovall, Jr. President

CC: DAVE HUNT

ID: nht75-5.39

DATE: 03/10/75

FROM: JAMES C. SCHULTZ FOR RICHARD B. DYSON -- NHTSA

TO: National Automobile Dealers Assoc..

TITLE: FMVSR INTERPRETATION

TEXT: This is in response to your letter of December 27, 1975, concerning the use of Form AADA-65 for purposes of disclosing odometer mileage when a vehicle is sold.

The NHTSA disagrees with your apparent contention that the portion of the preamble you cited, authorizing use of disclosure forms other than the one prescribed in Part 580, covers the use of Form AADA-65. That language limits the use of odometer forms which do not simulate the form contained in the regulation to situations where a State requires execution of an odometer statement which "contains equivalent information" to the Federal one. It is our understanding that the AADA form was adopted by the Arizona Automobile Dealers Association upon recommendation of the National Automobile Dealers Association. We are unaware of any Arizona State law that mandates use of the AADA form as a basis for compliance.

While the NHTSA appreciates the efforts of the NADA to develop a useful and effective odometer disclosure document, we cannot approve a format that is not substantially the same as the Federal form without following standard rulemaking procedures of notice and comment. We welcome your suggestions as to how you feel the odometer form can be improved, and suggest that you submit them in the form of petitions for rulemaking under the procedures specified in 49 CFR 553.31.

As pointed out in your letter, the NHTSA has determined that the AADA-65 form does not fulfill the requirements of Part 580. We appreciate your cooperation in notifying your membership of this decision. A changeover to use of the Federal odometer form by April 1, 1975, is considered reasonable by the agency. We thank you for your comments and look forward to receiving your ideas on the matters mentioned in your letter.

Yours truly,

ATTACH.

National Automobile Dealers Association

December 27, 1974

Richard B. Dyson, Esq. -- Acting Chief Counsel, National Highway Traffic Safety Administration, Department of Transportation

Re: N40-30 (kk)

Dear Sir:

Recent discussions have been held between Attorney Karen Kreshover of your office and Mr. Dave Hunt of my staff and myself concerning the odometer mileage statement form currently being utilized by the franchised new car dealer members of the Arizona Automobile Dealers Association (Form AADA-65). Questions have recently been raised as to whether Form AADA-65 satisfies the requirements of the Federal odometer law (Motor Vehicle Information and Cost Savings Act, Title IV, P.L. 92-513, 86 Stat. 947).

It is my understanding that John J. Relihan, Esq., of Solomon, Relihan & Blake, Law Offices, Suite A, 1819 West Osborn Road, Phoenix, Arizona 85015, has contacted your office (Mr. Relihan's letter dated September 9, 1974) requesting your Agency's views as to whether AADA-65 complies with the Federal odometer requirements. In addition, Mr. Relihan also inquired as to whether NHTSA had 'approved' Arizona Form AADA-65.

In your letter dated September 27, 1974 (September 30, 1974?) you state that you, ". . . (A)re unaware of any past correspondence between this office and either the Arizona Automobile Dealers Association or Norwick Printers of Oklahoma concerning the validity of a disclosure statement." You also state that, ". . . The Form AADA-65 enclosed in your letter fails to comply with our regulation in several respects." You then specifically discuss those areas of the form which in your opinion do not satisfy the requirements of the Federal odometer law and regulations of NHTSA promulgated pursuant thereto. Your suggestions for correcting those items which are deficient are also set forth.

A bit of historical background may be most helpful in explaining the 'birth' of AADA-65, and will explain NADA's involvement and interest in this matter. As I am sure you are aware, NADA was one of the prime backers of enactment of Title IV of the MVICSA. During your Agency's consideration of appropriate regulations to implement the mandate of the Congress, NADA supported the earliest effective date possible with respect to the odometer requirements. As events unfolded, this proved to be March 1, 1973. NADA also provided your Agency with its suggestions as to content and format for the suggested Federal odometer mileage statement form which your Agency developed.

After evaluating the odometer mileage form developed by your Agency, NADA reached the conclusion that perhaps more information than that required by your Agency's form, along with a somewhat different format, might prove to be more effective in reaching our common goal of devising an odometer mileage statement which would -- a) require at least the minimum substantive information to fulfill the intent of the Federal law; b) clearly and easily be understood by the average seller and buyer of motor vehicles; and c) be as concise as possible while maintaining and satisfying the objectives of (a) and (b) above. The use of such an alternative form was authorized by your Agency in your notice of rule making published in the Federal Register of January 31, 1973 at page 2978.

". . . To avoid the need for duplicate State and Federal disclosures in States having odometer disclosure laws or regulations, the section (Part 380.4) permits the State form to be used in satisfaction of the Federal requirement, so long as it contains equivalent information and refers to the existence of a Federal remedy."

(Federal Register, Vol. 38, No. 20, pg.2978)

Pursuant thereto, NADA developed its own version of an odometer mileage form which differed format-wise in some respects from the form developed by your Agency. NADA's form also required several additional items of information which were not required on the form developed by NHTSA. NADA then utilized its various publications to acquaint dealers at ATAM Managers of the various state franchised automobile dealer associations of the new requirements which were to go into effect March 1, 1973. NADA provided sample copies of both NHTSA's recommended form and the form which NADA had developed. Arizona's Form AADA-65 is an exact duplicate of the odometer mileage form developed by NADA.

In your notice of January 31, 1973, you state that an alternative State form may be utilized, ". . . . (S)o iong as it contains equivalent information and refers to the existence of a Federal remedy." (Emphasis added.) NADA believes that AADA-65 falls within these broad parameters, at least to the extent of satisfying the legal requirements of the Federal odometer law. However, NADA also firmly believes in the old adage 'experience is the best teacher.' After viewing the various ways in which several of the Arizona odometer forms have been filled out, NADA has come to agree with Attorney Kroshover that its form (of which AADA-65 is an example) simply has not met the test of actual field experience, and that at least some transferrors have become confused as to the proper method of filling out the form. In short, it has not been successful with respect to objective (b) as outlined above.

I want to make it very clear that NADA strongly supports maximum compliance with the requirements of the Federal odometer law, and therefore wishes to have its member franchised new car and truck dealers comply not only with the 'letter' but also the 'spirit' of the law. While believing that use of the NADA developed form in the past has satisfied the legal requirements of the Federal odometer law, I would like at this time to formally notify your Agency that NADA is in the process of notifying its membership of the preferability of discontinuing the use of the NADA developed form. NADA is recommending that the Federal odometer form as published in the Federal Register of January 31, 1973, be utilized in its stead. With the necessary and reasonable delays which are naturally being encountered in the changeover, i.e. new forms must be printed, distributed, etc., NADA at this time anticipates completion of the changeover in approximately 60 days, or about March 1, 1975.

NADA sincerely hopes that this action on its part will further the common goal of both your Agency and the franchised new car and truck dealers who comprise the membership of NADA of effectuating full compliance with the requirements of the Federal odometer law. NADA would like to note, however, that its original objections to the Federal form's limited content and format as developed by your Agency still exist. It is our intention, therefore, to request in the near future further formal rule making proceedings in this area. The practical field experience gained during the past year and one half (which exposed the weaknesses of the NADA developed form) should also be put to use, in NADA's view, to determine whether similar problems have been encountered in the use of the Federal form. Such an ongoing program review should serve a very useful function in insuring that the form utilized, to the maximum extent, is as clear and understandable as possible to the average consumer who must fill out an odometer form when selling his or her automobile.

It is NADA's hope that the action which it has taken with respect to the matters discussed above meet with the approval of your Agency. I think it can safely be said that our action in this matter fully confirms our stated support, from the inception of the Federal odometer law, for a fair and effective odometer mileage disclosure law to protect consumers from the occasional unethical and deceptive practices in this area encountered in the past. Your formal response in this matter would be greatly appreciated.

Awaiting your response, I remain

Sincerely yours,

Kevin P. Tighe -- Legislative Counsel

ID: nht75-5.4

DATE: 11/20/75

FROM: AUTHOR UNAVAILABLE; Frank A. Berndt; NHTSA

TO: Wisconsin Trailer Co. Inc.

TITLE: FMVSR INTERPRETATION

TEXT: The Federal Highway Administration's Bureau of Motor Carrier Safety has forwarded to the National Highway Traffic Safety Administration (NHTSA) your September 17, 1975, petition to establish a ruling that trailers with a gross vehicle weight rating (GVWR) of 50 tons or less are required to establish load-carrying capacity at a speed of 50 mph. Heavier trailers would be required to display signs of their maximum rated speed if less than 50 mph.

The NHTSA has already issued a ruling in this area, a copy of which is enclosed for your information. It requires that the Gross Axle Weight Rating (GAWR) and GVWR on the vehicle certification plate be calculated on the basis of the vehicle's maximum attainable speed, or 60 mph, whichever is lower.

The NHTSA is also considering rulemaking to amend the definition of GAWR in conformity with this interpretation. Your letter will be considered as a comment on this rulemaking.

Sincerely,

Enclosure

September 17, 1975

Bureau of Motor Carrier Safety -- Department of Transportation;

Attention: Robert A. Kaye -- Director

Subject: Petition for Reconsideration of 49 CFR 393.75 Tires -- (Docket MC-56)

Dear Mr. Kaye:

We have been informed by Rogers Brothers Corporation, that the Bureau of Motor Carrier Safety ruling MC-56 will become effective on October 1, 1975.

We do not have a copy of this ruling, and I therefore cannot speak for it or against it. I can only assume from the information supplied to us, that this ruling will not allow trailers to have a rated capacity based on a speed of 20 miles per hour.

We at Wisconsin Trailer Company, have for many years, advocated a capacity rating on trailers based on a travel speed of 50 miles per hour. It is our opinion that the 50 mile per hour speed rating should apply to all trailers having a rated capacity of 50 tons or less. With the advent of powerful trucks and super highways, trucks and truck-trailer combinations are moving at a high rate of speed, and I feel that the laws have to be upgraded to these modern times.

We find many trailer manufacturers promoting and selling their products based on a 20 or 30 mile per hour travel speed. This practice, we feel, must be stopped, as it is an unsafe and highly dangerous practice. Most users of these trailers will travel at speeds up to 50 miles per hour, even though the trailer is only rated at a maximum speed of 30 miles per hour. Who is there to stop him from traveling 50 miles per hour with a trailer rated at 30 miles per hour? Since there isn't a law-enforcing agency actively enforcing the "misuse of products", it then must be up to the Federal government to properly rate the vehicle at a minimum speed of 50 miles per hour. There should not be a variable speed capacity rating on trailers up to 50 tons.

We strongly urge the Bureau of Motor Carrier Safety to establish a ruling in which all trailers, up to 50 tons, would have a rated capacity based on a minimum of 50 miles per hour.

It is my opinion that large capacity trailers should be allowed to have a rated capacity at a speed of 20 miles per hour. In these instances, it should be mandatory that a large sign, plainly visible from another moving vehicle, be placed on the sides and rear of the trailer, so that if there is a violation regarding the speed of the unit when fully loaded, it will be recognized by the proper authorities.

If we can be of any further assistance to you, please feel free to call upon us.

Yours very truly,

WISCONSIN TRAILER CO., INC. -- LeRoy E. Mueller, President

ID: nht75-5.40

DATE: 10/03/75

FROM: AUTHOR UNAVAILABLE; Frank A. Berndt; NHTSA

TO: Helen Ginley

TITLE: FMVSR INTERPRETATION

TEXT: This is in response to your letter asking whether the odometer disclosure statement which you enclosed has been properly completed.

49 CFR Part 580, Odometer Disclosure Requirements, which was promulgated by the National Highway Traffic Safety Administration (NHTSA) under the authority of section 408 of the Motor Vehicle Information and Cost Savings Act (Pub. L. 92-513), prescribes the content and proper procedure for executing mileage disclosure statements at the time vehicles are transferred from one owner to another.

The form of the statement provided to you by Tommy Barrett, Inc. appears in compliance with the provisions of Part 580. The person who completed the statement, however, failed to disclose the vehicle's last plate number. In order to meet the requirements of section 408 of the Cost Savings Act and Part 580, this information must be disclosed in writing to the vehicle purchaser. Although the transferor's address was not correctly filled in, the form has been stamped with what appears to be an appropriate address.

Failure to fulfill the requirements of the Cost Savings Act may subject the violator to civil liability where his actions were intended to defraud the purchaser. The Act makes available to the buyer a remedy in the amount of $ 1,500 or treble damages, whichever is greater.

Since the license number may have been inadvertently omitted, I would suggest that you contact Mr. Barrett and inform him of the deficiency in the statement he provided you. You will probably want him to add the information that is currently missing.

For your information, I have enclosed copies of the relevant portions of the Act and regulation.

SINCERELY,

PREVIOUS OWNER'S -- ODOMETER MILEAGE STATEMENT

(Federal regulations require you to state the odometr mileage upon transfer of ownership. An inaccurate statement may make you liable for damages to your transferee, pursuant to 109 (a) of the Motor Vehicle Information and Cost Savings Act of 1972, Public Law 92-513.) (Odometers may not be disconnected, reset or altered.)

Date: (Illegible Word) 21 1974

I, Tommy (Illegible Words), certify that the odometer mileage indicated on the vehicle described below on Nov 21 1974 was 58922 miles, and I further certify that to the best of my knowledge and belief the odometer was not disconnected, reset or altered.

(Check the following statement, if applicable)

[] I further certify that the actual mileage differs from the odometer reading, for reasons other than odometer calibration error and that the actual mileage is unknown to the undersigned. MAKE BODY YEAR MODEL (Illeg.) TYPE (Illeg.) 1968 (Illeg.) VEHICLE IDENTIFICATION NUMBER LAST PLATE NUMBER H82398H112672 Transferor's address 8706 (Illeg.) Transferor's Signature (Illeg.)

Attached please find copy of my odometer reading which I don't believe is correctly completed - The (Illegible Word) address is my address - not Michael Barrett also last license plate number is omitted. I don't know if this is in violations of the act but would like to find out.

Mrs Helen Ginley 8706 ORCHARD AVE. BROOKLYN, OHIO 44144

ID: nht75-5.41

DATE: 12/02/75

FROM: AUTHOR UNAVAILABLE; Frank A. Berndt; NHTSA

TO: Ralph Blake

TITLE: FMVSR INTERPRETATION

TEXT: As you requested in your December 1, 1975, telephone conversation with Karen Kreshover of this office, I am answering by letter your question as to whether motor vehicle dealers must retain copies of Federal odometer disclosure statements which they either receive or execute.

Section 408 (a) of the Motor Vehicle Information and Cost Savings Act (15 U.S.C. 1988 (a)) gives the Secretary of Transportation authority to promulgate rules relating to the execution of statements disclosing odometer mileage on vehicles at the time of their sale. Such rules may, according to the Act, contain requirements prescribing the manner in which the necessary information is disclosed or retained.

Pursuant to the mandate of section 408, the National Highway Traffic Safety Administration promulgated 49 CFR Part 580, Odometer Disclosure Requirements. This regulation does not, however, require individuals to retain either copies or originals of odometer disclosure statements that come into their possession. This means that a dealer need not retain statements that are provided to him when he purchases a vehicle; nor must he retain copies of statements executed by him to purchasers of vehicles he sells.

SINCERELY,

ID: nht75-5.42

DATE: 09/23/75

FROM: AUTHOR UNAVAILABLE; Frank A. Berndt; NHTSA

TO: Mr. and Mrs. Sten Keinzler

TITLE: FMVSR INTERPRETATION

TEXT: This is in response to your letter of September 8, 1975, concerning apparent alteration of the odometer on the 1971 Pontiac Ventura II you traded in to Mosher Motor Sales.

The Motor Vehicle Information and Cost Savings Act (Pub. L. 92-513) prohibits disconnection, resetting, or alteration of a vehicle odometer with intent to change the number of miles indicated thereon. It also requires the execution of a written disclosure of a vehicle's mileage at the time ownership of a vehicle is transferred. A false statement on the disclosure form, knowingly made by the transferor, is considered a violation of the Act.

Violation of any of these requirements, committed with the intent to defraud, makes available to the buyer a civil remedy in the amount of $ 1,500 or treble damages, whichever is greater. To obtain this remedy the Act provides that a private civil action be instituted in State or Federal court.

The situation you describe in your letter indicates that there have been at least two violations of the Act by the dealer to whom you traded your car. If the person who purchased the vehicle from him becomes aware of the violations they will be able to sue according to the procedure described above. The only danger that exists for you relates to the absence of an odometer disclosure statement executed by you at the time you gave up possession of the car. If an eventual owner of the car discovers that the mileage has been altered he may sue everyone who ever owned the vehicle.

I would therefore suggest that you now execute an odometer disclosure statement indicating what the mileage was on the car at the time you turned it over to Mosher. I have enclosed the odometer disclosure regulation promulgated pursuant to the Act which contains a sample disclosure form. You may want to state somewhere on the document the reasons for your not having provided the statement at the time you sold your car. You can then send the document to the dealer by certified mail and retain your receipt as evidence that he received it. You may also find it a good idea to retain a copy of the odometer disclosure you complete.

Mosher Motor Sales is in violation of the law if it does not provide you with an odometer disclosure statement for the vehicle you purchased. A letter will be sent from this office informing the dealership of its noncompliance. You should demand that you be given a statement that conforms to the one required by law since it will serve as protection for you should that vehicle's mileage every be questioned.

Based upon the information you have provided it appears that Mosher Motor Sales may be violating the Federal odometer law. If you question the accuracy of the mileage currently indicated on the odometer of the car you purchased from them there are several means by which you may be able to establish that there has been an alteration. First, you may be able to obtain copies of prior odometer disclosure statements that certify the mileage on the vehicle at various points in the past. If these statements are unavailable, you may want to question prior owners of the vehicle as to what they recall the mileage being when they gave up possession. Your State Department of Motor Vehicles should be able to tell you how to trace back the chain of title. Some States record the mileage on vehicles at the time they are inspected and others enter mileage directly on the title document which is often filed with the State. These would be possible leads to finding out whether the mileage is accurate. Finally, an experienced mechanic may be able to determine if an odometer has been disconnected or altered.

The National Highway Traffic Safety Administration has no authority under the Cost Savings Act to conduct investigations to determine if there has been a violation of the odometer provisions. For this reason, we must rely on private individuals such as yourselves to notify us of violations. We will alert Mosher to the fact that we have received a complaint concerning them and inform them of the penalties for noncompliance.

Thank you very much for your letter.

Sincerely,

Enclosure

Sept 8, 1975

National Highway Traffic Safety Admin. 900 7th Street, N.W. Washington, D. C. 20590

Dear Sir:

On July 30, 1975, we bought a used 1971 Mercury Cougar. We used as trade-in a 1971 Pontiac Ventura II, D.#209750. We were not given a written "Odometer Disclosure Statement" nor did we sign one for our Pontiac that we trade-in.

Later (Illegible Words) stopped to see our old Pontiac that was out on the lot to be sold. My husband noticed the odometer reading. It read that there were only a couple of hundred miles over 38,000. I know that when we traded in the cougar over 58,000 miles. We do have proof that the mileage was in the 50,000.

When we found out that it was against the law not to get an odometer disclosure statement for the used car we bought sign one for the car we traded in, and saw that the mileage had been changed in the Pontiac, we even (Illegible Word) to the dealer to take care of it. They say they didn't know the mileage on the Cougar and the Pontiac was read.

The dealer (Illegible Word) got the Cougar from is Mosher Motor Sales, 310 West State Blvd., Fort Wayne, Indiana.

The other day I read an article in the (Illegible Words) Journal that says whom to write to regarding this matter. So we are turning the matter over to you.

Sincerely,

Steven & (Illegible Word) Kiengler 205 S. Liberty St. (Illegible Words), Indiana 46701

Copy also sent to Attorney General State of Indiana Indianapolis, Indiana

ID: nht75-5.43

DATE: 08/18/75

FROM: AUTHOR UNAVAILABLE; Frank A. Berndt; NHTSA

TO: Carlton; Fields; Ward; Emmanuel; Smith & Cutter; P.A.

TITLE: FMVSR INTERPRETATION

TEXT: This is in response to your letter of July 15, 1975, commenting on several aspects of the odometer disclosure regulation (49 CFR Part 580, Odometer Disclosure Requirements).

You suggested that the term "transferor," defined in @ 580.3 of the odometer regulation, poses a potential problem for a person who transfers ownership of a motor vehicle by gift to a member of his family and fails to execute an odometer disclosure statement. In your opinion, the attractive civil penalty available for noncompliance with the disclosure requirements might expose such a transferor to suit by his transferee despite the need to demonstrate intent to defraud as a prerequisite to recovery.

The National Highway Traffic Safety Administration (NHTSA) does not agree with your comment. Section 402(3) of the Motor Vehicle Information and Cost Savings Act (Pub. L. 92-513) defines the term "transfer" as a change of ownership by purchase, gift, or any other means (emphasis added). Section 408 of the Act orders the Department of Transportation to prescribe rules requiring any transferor to give an odometer disclosure statement to the transferee in connection with the transfer of ownership of a motor vehicle. Thus, the law mandates the execution of an odometer disclosure statement even when the transfer of ownership is by gift.

Since intent to defraud must be shown in order to obtain recovery under the Act, it is doubtful that someone who innocently fails to provide a disclosure form would suffer the consequences imposed by the Act. It is important that disclosure statements be executed at each point a vehicle changes hands as a means of protecting individuals in the chain of ownership. Once it is discovered that an odometer has been altered, the owner of the vehicle may name all prior owners as defendants in this suit and the disclosure form may be the only absolute evidence of one's innocence. Thus, the Act's requirement that a disclosure statement be provided, even in the case of an intra-family gift, has a definite basis. The "intent to defraud" aspect of the penalty section serves as a safeguard against abuse.

You commented in your letter that a loophole exists in section 580.5(b) making it possible for new car dealers to transfer vehicles without executing a disclosure statement. Your understanding of the section is incorrect. A new car dealer is required to complete an odometer disclosure statement whenever he transfers ownership of a vehicle to a person for purposes other than resale. This means that the only time a disclosure form is unnecessary (under @ 580.5(b)) is when the vehicle is transferred between parties for the purpose of resale. An example of this type of transfer is between a distributor and a dealer.

In your letter you cite possible problems involving the point at which the disclosure statement must be executed, the conspicuousness of the statement, and the effect of the statement that the mileage indicated on the odometer differs from the true number of miles the vehicle has traveled. @ 580.4 requires that the disclosure statement be furnished to the transferee of a vehicle before any transfer of ownership document is executed. In the preamble to the regulation, the agency explained this to mean that the disclosure must be made as part of the transfer, and not at some later time. This assures that the transferee will be made aware of the odometer mileage and its accuracy before he obtains ownership of the vehicle.

Although there is no requirement that the odometer statement be provided as a separate document, it is necessary that all of the required information be contained on some form which is provided to the transferee. There is, of course, no way of assuring that a transferee will examine all of the papers handed to him when he takes ownership of a vehicle. However, since the disclosure document must include a considerable amount of current information on the vehicle, it is likely that transferee will be aware of the filling out of the form.

The statement included on the form relating to the accuracy of the odometer mileage is phrased in positive terms and states that the mileage indicated on the odometer is incorrect, not that it may be incorrect. The odometer disclosure requirements are intended to assure that a transferee is aware of the accuracy of his vehicle's odometer mileage. If the transferor indicates that the mileage is incorrect, he has put the purchaser on notice and the purchaser from that point assumes the risk of owning a vehicle whose mileage is uncertain. It seems unlikely that a certification that the mileage is incorrect would be overlooked as might happen with "fine print" since the transferor must make a mark by the statement showing its applicability. This, it would seem, would draw one's attention to the warning.

Thank you for your comments.