ID: nht89-1.35

TYPE: INTERPRETATION-NHTSA

DATE: 03/10/89

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: JOSEPH F. MIKOLL -- VICE PRESIDENT TRANSPORTATION EQUIPMENT CORP.

TITLE: NONE

ATTACHMT: LETTER DATED 12/15/88 FROM JOSEPH F. MIKOLL TO ERIKA Z. JONES -- NHTSA, OCC 2812; LETTER DATED 12/03/88 FROM ERIKA Z. JONES -- NHTSA TO JOSEPH F. MIKOLL; LETTER DATED 08/11/88 FROM JOSEPH F. MIKOLL TO ERIKA Z. JONES

TEXT: Dear Mr. Mikoll:

This responds to your letter asking for clarification of my November 3, 1988 letter to you. In a letter dated August 11, 1988, you requested my opinion concerning the acceptability of installing a new product you are developing (a "safety bar") in schoo l buses with a gross vehicle weight rating (GVWR) of 10,000 pounds or less instead of installing safety belts in those vehicles. The "safety bar" consists, in part, of two curved metal poles in planes that are parallel to the longitudinal centerline of the bus. The curved metal poles are attached to the outside of the seat in front of the seat whose occupants are to be protected by the "safety bar." These curved poles are joined by three cross or transverse members that are parallel to the seat and ar e covered with padding. The padded surface extends over the entire width of the seat whose occupants it is intended to protect. When an occupant wishes to be seated, he or she must lift the safety bar and then sit down and allow the safety bar to lower so that it rests on the occupant's thighs. Additionally, a special strap resembling a very long seat belt assembly must be fastened around the safety bar to hold it in position in the event of a crash.

In my November 3, 1988 reply to your letter, I explained that the crash protection requirements for school buses with a GVWR of 10,000 pounds or less are set forth in S5(b) of Standard No. 222, School Bus Passenger Seating and Crash Protection (49 CFR @ 571.222). That section requires that each designated seating position be equipped with either safety belts or a protection system that requires no action by vehicle occupants. Since the "safety bar" is not a protection system that requires no action by vehicle occupants, my November 3 letter explained that the "safety bar" could not be installed in place of safety belts in small school buses; i.e., school buses with a GVWR of 10,000 pounds or less.

My November 3, 1988 letter also explained that safety bars could be installed in small school buses in addition to safety belts, if the safety bars do not destroy the ability of the required safety belts to

comply with the requirements of our safety standards. I also stated that a manufacturer that installed these safety bars in small school buses would have to certify that the bus in which the safety bars were installed complied with the school bus emerge ncy exit requirements of Standard No. 217, Bus Window Retention and Release (49 CFR @ 571.217) and with the impact zone requirements specified in S5.3 of Standard No. 222.

You asked whether my November 3, 1988 letter addressed the situation for both large school buses (i.e., those with a GVWR of more than 10,000 pounds) and small school buses, or whether it addressed only small school buses. Your previous letter asked onl y about small school buses, so my November 3 letter addressed those vehicles only. Assuming this was the case, you asked for "an opinion that [the safety bar] does not conflict with any standard for large school bus installation." I am happy to have thi s chance to explain our regulations to you.

Let me begin by noting that the National Traffic and Motor Vehicle Safety Act requires each manufacturer to certify that each of its motor vehicles or items of motor vehicle equipment complies with all applicable safety standards. Because of this statuto ry provision, NHTSA has no authority to approve, endorse, or offer assurances of compliance for your product. Instead, any manufacturer that installs your safety bar in its large school buses must itself certify that those large school buses comply with all applicable safety standards when the safety bars are installed.

The occupant crash protection requirements for large school buses are set forth in Standard No. 222. No provision of Standard No. 222 expressly prohibits the installation of "safety bars" in large school buses. Hence, "safety bars" can be installed in a large school bus, provided that the manufacturer of the bus certifies that it complies with all applicable requirements set forth in the safety standards with the safety bars installed. These requirements include the emergency exit requirements specif ied in Standard No. 217, all of the requirements of Standard No. 222, and the flammability resistance requirements of Standard No. 302, Flammability of Interior Materials (49 CFR @ 571.302).

Please let me know if you have any further questions or need additional information.

Sincerely,

ID: nht89-1.36

TYPE: INTERPRETATION-NHTSA

DATE: 03/13/89

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: ROBBIE FOLINO-NAZDA -- ATTORNEY-IN-FACT FRITZ COMPANIES, INC.

TITLE: NONE

ATTACHMT: LETTER DATED 12/19/88 FROM ROBBIE FOLINO NAZDA TO FRANK E. YOUNG -- FDA; OCC 3132 PRODUCT ANIMAL WARNING DEVICE

TEXT: Dear Mr. Folino-Nazda:

We have received a copy of your letter of December 19, 1988, to Commissioner Young of the Food and Drug Administration, forwarded to us by the Consumer Product Safety Commission. You have asked whether the "vehicle safety device" you described (with sam ples enclosed) are subject to any restrictions which would prevent importation of the device.

The device provides an "ultrasonic animal warning." At a speed "over 30 mph air flow produces a high pitch whistle which animals try to avoid." It is designed for owner installation on "bumpers, grills, fenders, mirrors and roofs" of motor vehicles. Bec ause the device is intended solely as an accessory to motor vehicles, it is an item of motor vehicle equipment subject to the jurisdiction of this agency under the National Traffic and Motor Vehicle Safety Act. However, there are no Federal motor vehicle safety standards that apply to this type of equipment.

You should also be aware that if the device's manufacturer ("manufacturer" includes both the maker as well as any importer for resale) or this agency were to determine that the device contains a safety-related defect, importers of this foreign-made devic e would be required by the Vehicle Act to recall the device and remedy the defect or replace the device without charge.

We are returning your samples to you.

Sincerely,

ID: nht89-1.37

TYPE: INTERPRETATION-NHTSA

DATE: 03/13/89

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: RAYMOND F. BRADY

TITLE: NONE

ATTACHMT: LETTER DATED 02/14/89 FROM RAYMOND F. BRADY TO NHTSA, REF 2912; LETTER DATED 12/16/88 FROM RAYMOND F. BRADY TO NHTSA

TEXT: Dear Mr. Brady:

This responds to your letter asking whether certain seats in a limousine would be considered "designated seating positions" within the meaning of the definition of that term in 49 CFR @ 571.3. You stated that the seats in question are two free-standing, rearward facing passenger seats installed in the rear passenger compartment of a limousine. According to your letter, these seats are mounted to the floor and do not fold into the back of another seat, nor are these seats labeled to indicate that they are not designated for occupancy while the limousine is in motion. In a February 24, 1989 telephone conversation with Mr. Marvin Shaw of my staff, you explained that the vehicles in which these seats are installed have not previously been sold for purpo ses other than resale. If the situation is as described in your letter, these seats would be considered "designated seating positions" within the meaning of 49 CFR @ 571.3.

Title 49 CFR @ 571.3 defines a "designated seating position" as follows:

any plan view location capable of accommodating a person at least as large as a 5th percentile adult female, if the overall seat configuration and design and vehicle design is such that the position is likely to be used as a seating position while the vehicle is in motion, except for auxiliary seating accommodations such as temporary or folding jump seats.

The seats described in your letter appear to be capable of accommodating a person at least as large as a 5th percentile adult female. Further, the overall seat configuration and design and the limousine's design is such that these seats appear likely to be used as a seating position while the vehicle is in motion. Finally, the seats do not appear to be auxiliary seating accommodations such as temporary or folding jump seats. For a more complete explanation of what type of seats the agency considers t o be "auxiliary seating accommodations," I have enclosed an April 28, 1971 letter from this agency to Mr. Nakajima of Toyota. Based on these conclusions, this agency would consider each of the two rear facing seats to be "designated seating positions."

If you have any further questions or need additional information on this subject, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

ENCLOSURE

Sincerely,

ID: nht89-1.38

TYPE: INTERPRETATION-NHTSA

DATE: 03/14/89

FROM: C. COLEMAN BIRD

TO: ERIKA JONES -- CHIEF COUNSEL OFFICE OF THE CHIEF COUNSEL NHTSA

TITLE: REQUEST FOR INTERPRETATION REGARDING STATUS OF PORTABLE BACK MASSAGER UNDER NATIONAL TRAFFIC AND MOTOR VEHICLE SAFETY ACT OF 1966, AS AMENDED

ATTACHMT: ATTACHED TO LETTER DATED 06/05/90 FROM STEPHENS P. WOOD -- NHTSA ACTING CHIEF COUNSEL TO C COLEMAN BIRD -- PEPPER HAMILTON AND SCHEETZ, A35, VSA 102[4]

TEXT: This is written to request the National Highway Traffic Safety Administration's ("NHTSA's") interpretation of the requirements of the National Traffic and Motor Vehicle Safety Act of 1966, as amended, 15 U.S.C. @@ 1381 et seq. (the "Act") and the regula tions (49 C.F.R. Part 571) as applied to the portable back massager product described below. The particular questions are: (1) whether this product is an "item of motor vehicle equipment" as defined in the Act, 15 U.S.C. @ 1391(4); (2) whether any Feder al safety standards (including but not limited to any NHTSA vehicle or equipment safety standards) are applicable to this product; and (3) if the product is not subject to the regulatory jurisdiction of NHTSA or the Department of Transportation, whether it is subject to the regulatory jurisdiction of any other agency.

The product in question is a portable back massager, which consists of an inflatable cushion (approximately 24.5 inches long, 14.5 inches wide, and 3 inches deep) that conforms to the user's back, with two massaging units (separate electric motors) th at are capable of giving simultaneous massage to the thoracic (upper back) and lumbar (lower back) regions of the user's back. The product also can provide heat to the user's back. It is designed for use either in the home or the user's vehicle (by mean s of an adaptor that plugs into the vehicle's cigarette lighter). When used in a vehicle, the product will simply be

placed on the user's seat and will not be affixed or installed in the vehicle in any way. It could be used either by the driver or by a passenger.

Please let me know if you need any additional facts concerning the product or its proposed use in motor vehicles in order to respond to this inquiry.

Thank you in advance for your anticipated prompt response.

Sincerely,

ID: nht89-1.39

TYPE: INTERPRETATION-NHTSA

DATE: 03/15/89

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: BYUNG M. SOH -- TARGET MARKETING SYSTEMS, INC.

TITLE: NONE

ATTACHMT: LETTER DATED 10/05/88 FROM BYUNG M. SOH TO TAYLOR VINRON; OCC 2648

TEXT: Dear Mr. Soh:

This responds to your letter of October 5, 1988, inquiring whether your "Starrace" hub cap violated Standard No. 211, Wheel Nuts, Wheel Discs, and Hub Caps (49 CFR @ 571.211) or any other of our safety standards. You explained that your self lighting hu b cap includes a motion activated LED light whose intensity varies according to the speed of the vehicle. You further noted that the LED, which has a maximum intensity of 40mmAmp, is designed for cosmetic rather than illuminating purposes. As explained below, your device would not appear to violate Standard No. 211. However, this device may present problems of compliance with Standard No. 108, Lamps, Reflective Devices, and Associated Equipment (49 CFR @ 571.108).

Standard No. 211 prohibits winged projections on wheel nuts, wheel discs, and hub caps. This prohibition extends to these items of motor vehicle equipment both as items of original equipment on new passenger cars and multipurpose vehicles and as items s old in the aftermarket as replacement parts for use on such vehicles. Judging by the picture enclosed with your letter, it does not appear that this hub cap has any winged projections. Nothing in Standard No. 211 explicitly prohibits LEDs on hub caps, wheel nuts, or wheel discs. Accordingly, your product does not appear to violate any provision of Standard No. 211.

However, the self lighting nature of your hub cap may raise questions under Standard No. 108. If this hub cap is marketed as original equipment to be installed before the initial sale of a motor vehicle, the vehicle with these hub caps installed must be certified as complying with Standard No. 108. Section S4.1.3 of Standard No. 108 provides that "No additional lamp, reflective device, or other motor vehicle equipment shall be installed that impairs the effectiveness of lighting equipment required by this standard." As I stated in my September 13, 1988 letter to you with respect to different equipment, we interpret this requirement as follows:

"Effectiveness may be impaired if the device creates a noncompliance in the existing lighting equipment or confusion with the signal sent by another lamp, or functionally interferes with it, or modifies its candlepower to either below the minima or ab ove the maxima permitted by the standard." (emphasis added)

Your product might impair the effectiveness of the required lighting by causing motorists to confuse its signal with the signal emitted by headlamps, stoplights, brakelights, taillights, side marker lamps, and other lighting devices. Such confusion is p ossible since your product is located on the wheels at approximately the same level as the lights required by Standard No. 108. This impairment of effectiveness would be especially likely if the hub cap lights were the same color (red, amber or white) as the lights required by Standard No. 108.

As for the aftermarket sale of your product, under @ 108(a)(2)(A) of the Safety Act, a manufacturer, distributor, dealer, or motor vehicle repair business may not perform modifications that render inoperative, in whole or in part, an element of design, s uch as lighting equipment, installed in compliance with a Federal safety standard. Again, if these lighted hub caps would impair the effectiveness of the lighting required by Standard No. 108, we would consider each aftermarket installation of the hub c aps by the manufacturer, distributor, dealer, or repair business to be a violation of the "render inoperative" provision of the Safety Act. Section 109 of the Safety Act provides for a civil penalty of up to $ 1,000 for each violation of the "render ino perative" provision. Please note that the Safety Act does not restrict a vehicle owner from modifying his or her own vehicle, even if the modification resulted in the vehicle no longer complying with Standard No. 108. Such modifications may, however, b e prohibited by State law.

Additionally, you should be aware that as a manufacturer of motor vehicle equipment, you will be subject to the requirements of sections 151-159 of the Safety Act (15 U.S.C. 1411-1419), concerning the recall and remedy of vehicles and equipment with defe cts related to motor vehicle safety. If it were determined that your product had a defect related to motor vehicle safety, you as the manufacturer would have to notify purchasers of the defect and either:

1. repair the product so that the defect is removed; or

2. replace the product with an identical or reasonably equivalent product that does not have the defect.

In either case, the manufacturer must bear the full expense of the remedy and cannot charge the product owner for the remedy if the product was first purchased less than eight years before the notification campaign.

If you have any further questions or need more information on this subject, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

ID: nht89-1.4

TYPE: INTERPRETATION-NHTSA

DATE: 01/18/89

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: WENDELL D. KEGG -- TIRE WHEEL CONSULTANTS

TITLE: NONE

ATTACHMT: LETTER DATED 09/14/88 FROM WENDELL D. KEGG TO ERIKA Z. JONES -- NHTSA, OCC 2560

TEXT: Dear Mr. Kegg:

This responds to your letter seeking an interpretation of Federal Motor Vehicle Safety Standard No. 110, Tire Selection and Rims. You were uncertain about section S4.3.1's requirements related to the inflation pressure for spare tires specified on vehic le placards. You asked whether a vehicle manufacturer can specify a higher inflation pressure for a spare tire than the maximum inflation pressure molded on the tire's sidewall.

As you know, FMVSS 110 sets forth requirements related to vehicle placards in passenger cars. Section S4.3 requires that the placard be "permanently affixed to the glove compartment door or an equally accessible location" and display the vehicle capacit y weight; the designated seating capacity; the vehicle manufacturer's recommended cold tire inflation pressure for maximum loaded weight and, subject to the limitations of S4.3.1, for any other manufacturer-specified vehicle loading condition; and the ve hicle manufacturer's recommended tire size designation. FMVSS 110 does not have any provision requiring the inclusion of information on the placard related to spare tires or air pressure related to spare tires. Accordingly, a passenger car manufacturer may, but is not required to, specify information related to spare tires on the placard.

In response to your question whether a passenger car manufacturer can specify a higher inflation pressure for a spare tire than the maximum inflation pressure molded on the spare tire's sidewall, section S4.3.1 of FMVSS 110 states that the vehicle placar d must not specify an "inflation pressure other than the maximum permissible inflation pressure" required to be molded on the tire itself by section S4.3 of FMVSS 109, New Pneumatic Tires, unless the alternative inflation pressure satisfies the three con ditions set forth in S4.3.1. The first condition requires that the alternative inflation pressure be less than the maximum permissible inflation pressure. The second condition requires that the vehicle loading condition be specified for the alternative reduced pressure. The third condition requires that the tire load rating be specified by an individual manufacturer for the tire size at that inflation pressure that

is not less than the vehicle load on the tire for that vehicle loading condition. Accordingly, a vehicle manufacturer could not specify on its placard an inflation pressure that exceeds the maximum permissible inflation pressure.

I am enclosing a December 13, 1984 letter to Mr. Alberto Negro of Fiat, which explains the agency's position concerning a manufacturer's specification on the placard of an inflation pressure that exceeds the maximum inflation pressure molded on the tire. As that letter indicates, a manufacturer would have to meet each of the conditions specified in section S4.3.1, including that the alternative inflation pressure must be less than the maximum permissible inflation pressure. Because spare tires are sub ject to these requirements like any other pneumatic tire, a vehicle manufacturer could not specify a higher inflation pressure for a spare tire than the maximum inflation pressure molded on that tire.

If you have any further questions or need additional information on this subject, please feel free to contact Marvin Shaw of my staff at this address or by telephone at (202) 366-2992.

Sincerely,

ENCLOSURE

ID: nht89-1.40

TYPE: INTERPRETATION-NHTSA

DATE: 03/17/89

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: J. JAMES EXON -- UNITED STATES SENATOR

TITLE: NONE

ATTACHMT: LETTER DATED 02/09/89 FROM J. JAMES EXON -- SENATE, TO NHTSA; LETTER DATED 01/26/89 FROM RON MOXHAM TO J. JAMES -- EXON; LETTER DATED 09/26/88 FROM RON MOXHAM TO ERIKA Z. JONES -- NHTSA

TEXT: Dear Senator Exon:

Thank you for your letter of February 9, 1989, in which you inquired about the status of a letter to this office from Mr. Ron Moxham, one of your constituents. I apologize for the delay in responding to Mr. Moxham.

In his inquiry, Mr. Moxham asked about the applicability of the National Highway Traffic Safety Administration's (NHTSA's) regulations to an add-on-trunk for mini vans, pickup trucks, Blazers, and other vehicles. He described his product as a detachable box that could be attached to the liftgate, bumper, or frame at the rear of a vehicle and extend 16 to 20 inches beyond the bumper. Your constituent asked whether there are any regulations applicable to this product, especially in relation to the vehic le's tail lights and other lighting components. He also asked whether his product would be required to have its own separate lighting equipment and its own separate bumper.

By way of background information, NHTSA does not provide approvals of motor vehicles or motor vehicle equipment. Under the statutes administered by NHTSA, it is the responsibility of the manufacturer to ensure that its vehicles or equipment comply with all applicable standards. The following represents our opinion based on the facts provided in Mr. Moxham's letter.

NHTSA does not have any specific regulations covering an add-on trunk. However, the addition of such a device could affect a vehicle's compliance with various safety standards. For example, an add-on trunk could affect a vehicle's compliance with Stand ard No. 108, Lamps, Reflective Devices, and Associated Equipment, by obscuring the vehicle's rear lights from some angles of view. This adverse effect could be offset by the addition of supplementary lighting devices to the trunk. See S4.3.1.1 of Standa rd No. 108. (Copy enclosed.)

If an add-on trunk is installed as original equipment on a new vehicle, the vehicle manufacturer is required to certify that, with the device

installed, the vehicle satisfies the requirements of all applicable safety standards.

If such a device is added to a previously certified new motor vehicle prior to its first sale, the person who modifies the vehicle may have certification responsibilities as an "alterer" under 49 CFR Part 567.7. This would occur if the installation of t he add-on trunk either altered the vehicle's stated weight ratings or constituted the installation of something that is not a "readily attachable" component. To ascertain whether the installation involves attachable components such factors as the intric acy of installation, and the need for special expertise must be taken into consideration. More information regarding the method of installation is necessary before we could determine whether the installation of the add-on trunk was the installation of a readily attachable component.

A person who modifies a vehicle prior to its first sale is also affected by other Federal requirements, whether or not that person is considered an "alterer." Section 108(a)(1)(A) of the National Traffic and Motor Vehicle Safety Act generally provides th at no person may "manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States," any motor vehicle or item of motor vehicle equipment that does not comply with an applicable Federal motor vehicle safety standard. In addition, under section 108(a)(1)(A) of the Act, no manufacturer, distributor, dealer, or motor vehicle repair business may knowingly render inoperative, in whole or in part, any device or element of design inst alled on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable Federal motor vehicle safety standard.

If an add-on trunk is installed on a used vehicle by a business such as a garage, the installer would not be required to attach a certification label. However, it would be subject to the "render inoperative" requirement cited above. Thus, the installer would have to make sure that it did not knowingly render inoperative, in whole or part, 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 st andard.

I note that in a letter dated September 25, 1987, NHTSA indicated that a person who installs a lift platform on the rear of a car, thereby blocking a lamp required by Standard No. 108, could avoid violating the prohibition against rendering inoperative b y installing an auxiliary lamp meeting the standard's photometric requirements. Since that situation may have similarities to the one faced by Mr. Moxham, I am enclosing a copy of the letter.

Mr. Moxham did not specifically indicate whether his product would be sold for passenger cars. NHTSA has a bumper standard which sets forth requirements for the impact resistance of passenger cars in low speed front and rear collisions. The addition of an add-on trunk could affect a passenger car's compliance with the bumper standard.

Enclosed is an information sheet which identifies relevant Federal statutes and NHTSA standards and regulations affecting motor vehicles and motor vehicle equipment manufacturers. Mr. Moxham should also be aware that state laws may apply to his device.

I hope this information is helpful.

Sincerely,

ENCLOSURES

ID: nht89-1.41

TYPE: INTERPRETATION-NHTSA

DATE: 03/17/89

FROM: ROBERT V. POTTER -- SPALDING AND EVENFLO COMPANIES INC

TO: NHTSA

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 07/27/89 FROM STEPHEN P. WOOD -- NHTSA TO ROBERT V. POTTER -- SPALDING AND EVENFLOW CO; REDBOOK A33; STANDARD 213; LETTER DATED 07/31/86 FROM ERIKA Z. JONES -- NHTSA TO K. A. ZIOMEK -- TRW

TEXT: Dear Sir or Madam:

I am writing to request a formal opinion on whether any National Highway Traffic Safety Administration rule, regulation or requirement addresses the question of how long a manufacturer of child restraint devices, designed for use in motor vehicles, must retain or make available replacement parts for those devices. It is my understanding that there is a regulation requiring the manufacturers of motor vehicles to manufacturer or make available replacement parts for ten years. It is my current understand ing and opinion that those regulations do not apply to child restraint devices, but I would appreciate your opinion on this matter.

Very truly yours,

ID: nht89-1.42

TYPE: INTERPRETATION-NHTSA

DATE: 03/20/89

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: PETER J. YANOWITCH -- DAVIS, MARKEL, & EDWARDS

TITLE: IMPORTATION OF PORSCHE 959

ATTACHMT: LETTER DATED 02/27/89 FROM PETER J. YANOWITCH TO ERIKA Z. JONES -- NHTSA, RE IMPORTATION OF PORSCHE MODEL 959,0CC 3188

TEXT: Dear Mr. Yanowitch:

This is in reply to your letter of February 27, 1989, requesting a response by March 10 as to whether the Department would permit the importation of a Porsche 959 pursuant to 19 CFR 12.80(b)(1)(v).

Specifically, you represent a non-resident of the United States who wishes to import such a vehicle, and operate it on the public roads of this country during the 1-year period. You have asked for confirmation in writing that if the vehicle is imported on this basis that "the Department of Transportation would not have jurisdiction to impound, confiscate, destroy, require a bond, or otherwise take any action with respect to the vehicle, so long as the non-resident fully complies with the provisions" of 12.80(b)(1)(v), and, further, that the Department "would not object to the non-resident driving this vehicle on the road" while it is the United States. You also state that your client is prepared to submit "sworn testimony that he will comply with the requirements of the United States Customs Regulations."

Under 19 CFR 12.80(b)(1), each vehicle offered for introduction into the Customs territory of the United States shall be denied entry unless the importer files a declaration which declares that "(v) The importer . . . is a non-resident of the United Stat es, is importing the vehicle . . . primarily for personal use for a period not exceeding 1 year from the date of entry, will not sell it in the United States during that period, and has stated his passport number and country of issue . . . in the declara tion." This provision was adopted in recognition of international treaties to which the United States is a party, which intended to assure the free flow of international road traffic. However, this agency does not construe either the regulation or the t reaties as conferring an absolute right upon any non-resident to import a non-conforming vehicle if considerations of policy dictate a determination that such entry would not be in the interests of the United States. Chief among these considerations is whether the importer has previously imported a motor vehicle in violation of the importation regulations.

Accordingly, we wish to review your client's declaration before the time the vehicle arrives at the port of entry. I enclose a copy of our Form HS-7 for its completion and return to us. We request that a photocopy of the title or other certificate of o wnership be enclosed as well. We also ask that a statement be attached to the declaration, so that it becomes a part of it and subject to penalties in the event that it is false or misleading, in which your client discloses whether he has ever imported into the United States any motor vehicle manufactured on or after January 1, 1968, and, if the answer is affirmative, to provide the make, model, and port and approximate date of entry, and the name of the importer or cosignee as it appeared on the decla ration. Finally, we also request an affirmation from your client that he will not sell the vehicle, or offer it for sale, either before or during the stay in the United States, and that he will export it at the end of the 1-year period.

We have received and reviewed the declaration and statement we shall be pleased to consider this matter further, and we shall answer your questions at that time.

Sincerely,

ENCLOSURE

ID: nht89-1.43

TYPE: INTERPRETATION-NHTSA

DATE: 03/20/89

FROM: ERIKA Z. JONES -- CHIEF COUNSEL NHTSA

TO: THOMAS E. GUNTON -- CORPORATE COUNSEL MCCULLAGH LEASING, INC.

TITLE: NONE

ATTACHMT: LETTER DATED 12/01/88 FROM THOMAS E. GUNTON TO JUDITH KALETA RE ODOMETER DISCLOSURE REQUIREMENTS, OCC 2865

TEXT: Dear Mr. Gunton:

This is in response to your letter of December 1, 1988, concerning the Federal odometer disclosure requirements. You asked whether the Federal requirements apply to large scale sales of motor vehicles between leasing companies or whether a lease company that is transferring many vehicles to another lease company is exempt from these requirements.

Section 408 of the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. @ 1988, requires the Secretary of Transportation to prescribe rules and regulations requiring any transferor to give a written disclosure (1) of the cumulative mileage registere d on the odometer or (2) that the actual mileage is unknown, if the odometer reading is known to be different from the number of miles that the vehicle has actually travelled. This authority was delegated to NHTSA. NHTSA has created exemptions for tran sferors of vehicles for which the odometer is not relied upon as an indicator of vehicle mileage or condition. Currently, pursuant to 49 C.F.R. @ 580.5, transferors of the following vehicles are not required to issue an odometer disclosure statement:

(1) a vehicle with a gross vehicle weight rating of more than 16,000 pounds;

(2) a vehicle that is not self-propelled;

(3) a vehicle that is twenty-five years old or older;

(4) a vehicle sold directly by the manufacturer to any agency of the United States in conformity with contractual specifications; and

(5) a new vehicle prior to its first transfer for purposes other than resale.

Beginning April 29, 1989, a transferor of a vehicle that is ten years old or older need not disclose the mileage to the transferee in connection with the transfer of ownership. 53 FR 29464 (1988).

NHTSA has not created any other exemptions. Therefore, a transferor of vehicles must issue an individual odometer disclosure statement for each of the vehicles being transferred, regardless of the number of vehicles transferred in a single transaction. It is our opinion that this requirement may be met with a single odometer disclosure statement that could be used to disclose the mileage of several vehicles, as long as all of the information required by our regulations appears for each vehicle on the combined statement. While the parties to the transfer of numerous vehicles might not rely on the odometer reading of each vehicle to determine the total value of the transaction, subsequent purchasers are entitled to rely on the odometer reading as an a ccurate reflection of the mileage travelled by the vehicle in order to determine the condition and value of the vehicle. The odometer disclosure statement given from one leasing company to the other will be retained by both the transferor and transferee . The purchasing company will rely on this statement when issuing an odometer disclosure statement to a subsequent buyer. Furthermore, the statement between the two leasing companies will become part of the "paper trail", the evidence of mileage that ma y be checked by subsequent purchasers and law enforcement officials.

I hope you find this information helpful. If you have any questions, do not hesitate to contact us again.

Sincerely,