ID: nht95-4.86

TYPE: INTERPRETATION-NHTSA

DATE: November 28, 1995

FROM: Samuel J. Dubbin -- Chief Counsel, NHTSA

TO: Phyllis Armstrong -- General Sales Manager, Saturn of Puyallup, Inc., Washington

TITLE: NONE

ATTACHMT: ATTACHED TO 5/17/95 LETTER FROM Phyllis Armstrong to Phillip Reckt; Also attached to 7/20/89 letter from Kathleen DeMeter to B.L. Swank

TEXT: Dear Ms. Armstrong:

This is in response to the letter in which you requested this office to confirm in writing that the information you received from Mr. Richard Morse, Chief of the Odometer Fraud Staff of the National Highway Traffic Safety Administration (NHTSA), concerni ng the proper completion of odometer disclosure statements for Saturn vehicles that have been towed. The question arises because the odometer on the Saturn is designed not to register miles when the vehicle is being towed.

NHTSA's interpretation of the Truth in Mileage Act of 1986 ("TIMA," 49 U.S.C. Chapter 327) and the regulations implementing TIMA (49 CFR Part 580) is that when a vehicle has been towed, but its odometer is not capable of registering towed mileage, the pr oper way to complete the odometer disclosure statement is to record the number of miles showing on the odometer. It is permissible in such a situation for the transferor to certify that this number is the actual mileage on the vehicle, assuming there ar e no other reasons to believe that the reading on the odometer does not reflect actual miles driven.

The situation you describe is comparable to that in which the odometer is disconnected and the drive wheels of the vehicle are off the pavement while it is being towed. In a 1989 interpretation letter, the Chief Counsel of NHTSA stated that when the veh icle is being towed with its drive wheels off the pavement and the odometer disconnected, the mileage driven while being towed does not count, and need not be added to the mileage showing on the odometer. That letter also stated that the transferor may c ertify in this circumstance that the mileage on the odometer, exclusive of the towed mileage, is the actual mileage. I have enclosed a copy of that letter for your information.

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I hope you find this information helpful. If you have any further questions on Federal odometer disclosure requirements, you may contact Mr. Morse or Ms. Eileen Leahy, an attorney on my staff, at the above address. You may reach Ms. Leahy at (202) 366- 5263, and Mr. Morse at (202) 366-4761.

Sincerely,

ID: nht95-4.87

TYPE: INTERPRETATION-NHTSA

DATE: November 28, 1995

FROM: Samuel J. Dubbin -- Chief Counsel, NHTSA

TO: Ben Ray

TITLE: NONE

ATTACHMT: ATTACHED TO 9/18/95 LETTER FROM Ben Ray to John Womack (OCC 11244)

TEXT: Dear Mr. Ray:

This responds to your letter asking about Federal requirements for automatic brake adjusters on log trailers. According to your letter, you manufacture log trailers, using used axles that already have what you call "regular" (i.e., manual) brake adjuste rs on them. In an October 13, 1995 telephone conversation with Mr. Marvin Shaw of my staff, you further stated that the wheels, brakes, and suspension are typically used, but that occasionally you use new brake systems. You also clarified that these tr ailers are used on the public roads as well as in the woods for transporting logs to the mills. You asked whether it is permissible to use manual brake adjusters instead of automatic adjusters. The answer depends it is permissible to use manual brake ad justers instead of automatic adjusters. The answer depends on whether your log trailers are equipped with new or used components and the trailer continues to use the Vehicle Identification Number (VIN) and to be owned by the user of the reassembled vehi cle.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) issues safety standards for new motor vehicles and new motor vehicle equipment. The agency does not provide approvals of motor vehicles or motor vehicle equipme nt. Instead, manufacturers are required to certify that their vehicles or equipment meet all applicable standards. Once such standard is Standard No. 121, Air brake system, which requires new trailers to be equipped with automatic brake adjusters. The following represents our opinion based on the facts provided in your letter.

NHTSA's regulations specifically address the question of when trailers produced by combining new components and used materials are considered to be new trailers. Section 49 CFT 571.7(f) states that when new and used components are used in trailer manufa cture, the trailer will be considered "newly manufactured" unless each of the following three conditions is true with respect to the trailer. First, the trailer running gear assembly, which includes the axle(s), wheels, braking and suspension, is not ne w and was taken from an existing trailer. Second, the existing trailer's identity is continued in the reassembled vehicle with respect to the VIN. Third, the existing trailer is owned or leased by the user of the reassembled vehicle.

In other words, a log trailer will generally be considered newly manufactured, unless all these conditions are met. If a trailer is considered newly manufactured, then it must comply with the

P2 current requirements applicable to trailers. Among other things, this means that the trailer must be equipped with automatic adjusters. If a trailer meets these three conditions, then it is considered not newly manufactured and may be equipped with man ual adjusters.

I hope this information is helpful. If you have any questions about NHTSA's safety standards, please feel free to contact Marvin Sahw at this address or by telephone at (202) 366-2992.

Sincerely,

ID: nht95-4.88

TYPE: INTERPRETATION-NHTSA

DATE: November 28, 1995

FROM: Samuel J. Dubbin -- Chief Counsel, NHTSA

TO: Paul Danner, Esq. -- General Claim Counsel, State Farm Mutual Automobile Insurance Company

TITLE: NONE

ATTACHMT: ATTACHED TO 8/31/95 LETTER FROM Paul Danner to John Womack; Also attached to 8/9/89 letter from Kathleen DeMeter to Madeline Flanagan

TEXT: Dear Mr. Danner:

This is in response to your letter of August 31, 1995, to John Womack, then Acting Chief Counsel of this office, in which you asked for an interpretation of the proper application of Federal odometer disclosure requirements in a situation where an insure r is settling with a vehicle owner on a Claim for theft of the vehicle. Specifically, your letter requests confirmation that the information given to you over the telephone by Mr. Richard Morse, Chief of the Odometer Fraud Staff of the National Highway Traffic Safety Administration (NHTSA) accurately reflects the agency's interpretation of these requirements. For the sake of clarity, I will address the proper procedures to be followed, rather than your letter's rendition of Mr. Morse's advice.

After a vehicle has been stolen, it is of course unavailable to the insured-transferor at the time of title transfer to the insurer. Therefore, when completing the odometer disclosure needed to transfer ownership to the insurance company, the insured-tr ansferor may enter a figure that is his or her "best guess estimate" of the mileage on the odometer at the time the vehicle was stolen, not at the time of transfer to the insurer-transferee. In addition, the odometer disclosure must be dated as of the d ate of the theft, not as of the date of the transfer to the insurance company. The insured must certify on the odometer disclosure as to whether the odometer reading at the limits of the odometer, as appropriate.

In 1989, the agency issued an interpretation letter stating that this was the proper procedure for a lessee to follow when completing a disclosure to the lessor under 49 CFR @580.7 for a vehicle that had been stolen. That interpretation is equally appli cable to the situation in which the owner, rather than the lessee, is making an odometer disclosure for a stolen vehicle. I have enclosed a copy of that interpretation letter fro your information.

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As for the other issues raised in your letter, the following interpretation applies. Once the insured-transferor has completed the odometer disclosure and otherwise complied with requirements of state law for title transfer, the insurer-transferee shoul d then follow the procedures required by the appropriate state law to obtain title to the vehicle. If the vehicle is subsequently recovered and the insurer sells it for salvage, the insurer (which in this transaction will be the transferor) must inspect the vehicle and record the mileage that appears on the odometer at that time. If the insurer has no reason to believe that the mileage on the odometer is not the actual mileage on the vehicle, it must certify on the odometer disclosure that the mileage is the actual mileage on the vehicle. However, if the insurer does have reason to believe that the mileage shown on the odometer is not actual (e.g., if it is less than the mileage shown on the odometer disclosure statement provided to the insurer by t he insured when title was transferred to the insurance company), it must so certify on the odometer disclosure statement given to its transferee (the salvage company in your example), and indicate on the statement that there is an odometer discrepancy.

I hope this letter answers your questions about the procedures to be followed by the parties to the transactions you describe. If you have any further questions regarding legal interpretations of the Federal odometer statute and regulations, please cont act Eileen Leahy, an attorney on my staff, at the above address or at 202-366-5263.

Sincerely,

ID: nht95-4.89

TYPE: INTERPRETATION-NHTSA

DATE: November 28, 1995

FROM: Clifford C. Sharpe

TO: Legal Division, U.S. DOT

TITLE: NONE

ATTACHMT: 2/2/96 letter from Samuel J. Dubbin to Clifford C. Sharpe (A44; Std. 109)

TEXT: I represent a client who purchased a Turbo Plus Radial GT steel belted radial tire bearing Dept of Transportation Serial No.: ADHY28M166 manufactured by General Tire, Inc. between April 20-26, 1986 at its Mayfield, KY plant. My client purchased the tire as "new" on November 12, 1991. The tire unraveled in March of 1993 after about 14,000 miles of travel causing injury.

Are there any regulations that address the selling as new of a tire that was manufactured 5 years hence?

Are you aware of any studies or information on the affects of age/time on an unused tire?

I will be responsible for all costs associated with this request.

ID: nht95-4.9

TYPE: INTERPRETATION-NHTSA

DATE: August 31, 1995

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Karen Coffey, Esq. -- Chief Counsel, Texas Automobile Dealers Association

TITLE: NONE

ATTACHMT: ATTACHED TO 8/22/95 LETTER FROM KAREN COFFEY TO JOHN WOMACK (OCC 11154)

TEXT: Dear Ms. Coffey:

This responds to your letter asking whether a dealer would violate Federal law by disconnecting a malfunctioning motor in an automatic seat belt system of a 1990 model vehicle. You state,

"a consumer has brought their vehicle to a dealership with an automatic seat belt in which the motor on the automatic seat belt continues to run. This continuous running of the seat belt motor causes the battery on the vehicle to run down, rendering the vehicle inoperable."

In a telephone conversation with Edward Glancy of this office, you indicated that the automatic seat belt is stuck in one position. The consumer has requested that the dealership disconnect the motor in lieu of repairing it. You also stated that, in th e event of such disconnection, the seat belt may still be connected manually.

As discussed below, it is our opinion that, under the facts stated above, a dealer would not violate Federal law by disconnecting the malfunctioning motor.

By way of background information, Standard No. 208, Occupant Crash Protection, required 1990 model cars to be equipped with automatic crash protection at the front outboard seating positions. Automatic seat belts were one means of complying with that re quirement.

Federal law (49 U.S.C. 30122, formerly section 108(a)(2)(A) of the National Traffic and Motor Vehicle Safety Act) provides that:

A manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicl e safety standard . . .

It is our opinion that this requirement does not prohibit a dealer from disconnecting a malfunctioning seat belt motor in the factual situation described above. Since the seat belt motor would already be inoperative when the vehicle was brought to the d ealer, we would not consider the subsequent disconnection of the motor as making it inoperative. I note, however, that in servicing the vehicle, the dealer must not make another part of the vehicle or element of design inoperative with respect to the Fe deral motor vehicle safety standards.

While Federal law does not require dealers or owners to repair a malfunctioning seat belt motor, NHTSA strongly urges such repair, so that the vehicle continues to provide maximum safety protection. We also note that dealers and owners may be affected b y State laws in this area, including ones for vehicle inspection and tort law.

In closing, we suggest that the dealer urge the consumer to contact NHTSA's toll-free Auto Safety Hotline about this problem, at 800-424-9393. The agency uses this type of information in performing its safety mission.

I hope this information is helpful. If you have any further questions, please contact Mr. Glancy of my staff at (202) 366-2992.

ID: nht95-4.90

TYPE: INTERPRETATION-NHTSA

DATE: December 1, 1995

FROM: Samuel J. Dubbin -- Chief Counsel, NHTSA

TO: Edward Mansell -- Chief Engineer, Polar Tank Trailer, Inc.

TITLE: NONE

ATTACHMT: ATTACHED TO 10/10/95 LETTER FROM Edward Mansell to Philip R. Recht (OCC 11305)

TEXT: Dear Mr. Mansell:

This is in reply to your letter of October 10, 1995, to Philip R.Recht, former Chief Counsel of this agency. You seek an interpretation of the conspicuity requirements of Motor Vehicle Safety Standard No. 108 as they apply to some Food Grade Tank Traile rs (FGTTs).

Paragraph S5.7.1.4.1(a) requires conspicuity sheeting to be placed "across the full width of the trailer" and "as close as practicable to not less than 375 mm and not more than 1525 mm above the road surface." You indicate that for many trailers the rear bumper is the closest practicable location (approximately 500 mm), but that, on some FGTTs, the load/unload ports are directly above the center portion of the rear bumper. The hot water to which the bumper is exposed degrades the conspicuity sheeting. "Since installation of sheeting subject to frequent hot water run off is not sheeting to be "applied from the extreme ends of the bumper to points no more than 6 inches (150 mm) to the left or right of the area directly below the load/unload area." You also state that "otherwise, the center section of the sheeting should be located on the tank, above the load/unload area."

We believe that this interpretation meets the intent of the standard. Under paragraph S5.7.1.4.1(a), the mounting height of the conspicuity material is based upon practicability, but the application "across the full width of the trailer" is absolute. W e interpret "across the full width" to mean that the sheeting must cover the entire width of the vehicle, though not necessarily on the same plane or continuously. Thus, mounting above the load/unload area would be acceptable as a practicable location. Generally, the agency defers to a manufacturer's determination of practicability and will not question it if it is not clearly erroneous. It is not the intent of the standard that manufacturers "redesign trailers to redirect the flow of wash water."

You also believe that, for FGTTs which use a cabinet to enclose the load/unload area, "conspicuity sheeting should be

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mounted on the cabinet doors to augment the sheeting on the bumper." Although you did not enclose a drawing of this configuration, it appears acceptable. We assume that, when viewed from the rear, the sheeting has the appearance of extending across the full width of the vehicle, even if the section on the cabinet doors is not on the same plane as that on the bumpers. This, too, is acceptable as a manufacturer's determination of practicability.

Sincerely,

ID: nht95-4.91

TYPE: INTERPRETATION-NHTSA

DATE: December 4, 1995

FROM: K.J. Sato -- President & CEO, Tekno - Info Corporation

TO: Kenneth O. Hardie -- Office of Rulemaking, NHTSA

TITLE: Request of Clarification for FMVSS No. 108 Requirements, S. 5.1.2

ATTACHMT: 2/1/96 letter from Samvel J. Dubbin to K.J. Sato (A44; Std. 108)

TEXT: This is to request you to clarify the interpretation of Federal Motor Vehicle Safety Standard (FMVSS) No. 108; Lamps, Reflective Devices, and associated equipment, paragraph S5.1.2.

Federal Register, September 5, 1995 Vol. 60, No. 171, page 46064 - 46067, announced the final rule to amend S5.1.2, effective from March 1, 1996. We would like to have your comments to clarify the requirement of S5.1.2(b).

Question on S5.1.2(b):

1) When plastics materials tested per SAE J576 JUL 91, and passed every criteria including the haze (and loss of surface luster) less than 30% (e.g. 10%) but failed to one of the appearance requirements (e.g. delamination) per J576 JUL 91, paragraph 4.2. 4 which says". . . shall not show physical changes affecting performance such as color bleeding, delamination, crazing, or cracking.", we need clarification whether or not the plastics materials are considered in compliance with S5.1.2(b) and can be used for lenses (other than those incorporating reflex reflectors). (We understand from S5.1.2(c) that the materials mentioned above cannot be used for reflex reflectors or lenses used in front of reflex reflectors since the materials failed to comply with the haze that exceeded 7%, and failed to comply with one of the the appearance requirements mentioned in S5.1.2(c)(("delamination")). But our question is asking if the materials can be used for lenses other than reflex reflectors or lenses used in front of, or incorporating, reflex reflectors). The reason for this question is that S5.1.2(b) does not mention those appearance requirements specifically but only mentions J576 JUL 91, although S5.1.2(c) specifically mentions those appearance requirements.

2) Since the final rule's S5.1.2(b) basically the same as the current S5.1.2(b), are we correct in assuming that your clarification of the above question 1) also applies to the current S5.1.2(b)?

I look forward to hearing from you at your earliest convenience.

ID: nht95-4.92

TYPE: INTERPRETATION-NHTSA

DATE: December 6, 1995

FROM: Jeffrey S. Bakst -- Attorney at Law

TO: Dorothy Nakama -- NHTSA

TITLE: FMVSS Standard 124 "Accelerator Control Systems"/Mitsubishi Motorist Corporation Carburetor

ATTACHMT: 12/28/95 letter from Samuel J. Dubbin to Jeffrey S. Bakst (A44; Redbook 4; Std. 124; VSA 30118)

TEXT: First, I want to inform you we are dealing with a 1988 Dodge Ram 50 truck manufactured by Mitsubishi in Japan, sold in July, 1988. The accident involved occurred in December, 1990. I would like to acquire the National Highway Traffic Safety Administrat ion's opinion on the following questions:

1. If the manufacturer discovers a safety-related problem after the vehicle has been sold to the first purchaser in good faith, does the manufacturer have a legal duty to notify NHTSA and/or the purchaser of this problem?

If yes, what must a manufacturer do for the purchaser?

2. Assume there is a safety-related defect in a brand new carburetor that results in engine overspeed. If the "two sources of energy" are not sufficient to return the throttle to idle position when the driver removes the actuating force from the accele rator control in use, does the carburetor fall to comply with FMVSS 124?

I can represent to you that we took a brand new carburetor and proved that if the secondary throttle plate were to get stuck shut for whatever reason, the primary throttle linkage would bind on the secondary throttle linkage, causing the primary throt tle plate to get stuck in a wide open throttle position, which results in engine overspeed. In essence, the two sources of energy on this carburetor are not sufficient to return the throttle to the idle position whenever the driver removes the actuating force from the accelerator control. Mitsubishi's own test on a brand new carburetor proved that if there was a malfunction in the secondary throttle plate, that the two (2) sources of energy were insufficient to return the throttle to idle position.

As I explained, time is truly of the essence. Mr. Bode requested his letter to attach to his Appellate Brief. I now have to respond to his brief, and I must have your report by the end of this year, if I am going to be able to use it in the appeal.

If you need additional information, please let me know.

ID: nht95-4.93

TYPE: INTERPRETATION-NHTSA

DATE: December 6, 1995

FROM: Alex Tartakovsky -- Sales, Marketing Dept., Unidex Group, Inc.

TO: Office of Chief Council -- NHTSA

TITLE: Any safety regulations regarding snow chains for motor vehicles.

ATTACHMT: 1/29/96 letter from Samuel J. Dubbin to Alex Tartakovsky (A44; VSA 102)

TEXT: I would like to request from you in writing any information regarding safety standards and/or laws covering snow chain use for roads and/or for motor vehicles. If there are no such standards please advise me so in writing. Please fax me back the above i nformation.

Thank you!

If you have any questions, or if I may assist you in any way please do not hesitate to call me at 708-299-0300.

Best Regards,

ID: nht95-4.94

TYPE: INTERPRETATION-NHTSA

DATE: December 8, 1995

FROM: Samuel J. Dubbin -- Chief Counsel, NHTSA

TO: Mr.Peter F. Marthy -- New York State Automobile Dealers

TITLE: NONE

ATTACHMT: 9/19/95 letter from John Womack to David Seagren

TEXT: This is in response to your letter requesting the Chief Counsel of the National Highway Traffic Safety Administration (NHTSA) to explain the proper procedure to be followed in completing an odometer disclosure for a vehicle whose odometer had been previo usly been replaced and which has a sticker affixed to the inside left door jamb stating the actual mileage at the time the odometer was replaced. Specifically, you ask whether the transferee may enter on the disclosure statement a figure that is the tota l of the mileage on the new odometer and the mileage shown on the door sticker, and, if so whether the transferor can then certify that figure is the actual mileage the vehicle has traveled.

The reason that it is permissible to certify on the odometer disclosure that the total of the figure on the door sticker and the figure on the current odometer reading represents the actual mileage is that the combination of the sticker and the second od ometer contains sufficient information from which the transferor can calculate with precision the total actual mileage on the vehicle. Under 49 U.S.C. @ 32704(a)(2), the door sticker must show the mileage at the time the odometer was replaced; and the t ransferor can ascertain the reading on the current odometer by visual examination. Of course, if the transferor has knowledge that either figure does not represent actual mileage, he or she may not certify that a total of the two figures is the actual m ileage.

We consider this situation to be comparable to that in which a transferor converts an odometer registering kilometers to an odometer that registers miles, because in both situations, the transferor is able to arrive at the correct number of miles the veh icle has actually traveled simply by applying a mathematical formula to the numbers showing on the odometer. In a recent interpretation letter, the agency stated that a dealer which had converted a vehicle's odometer from kilometers to miles, and knew t he kilometer reading before the conversion, could certify that the odometer reading in miles represented "actual mileage" because the dealer knew the number of kilometers before the change and could be accurately calculate the number of miles by multiply ing that figure by 0.62. I have enclosed a copy of that letter for your information.

In answer to the question of whether or not the transferor should have the odometer replaced before the transfer with an odometer set to reflect the total number of miles on the vehicle, NHTSA believes that in the circumstances you describe, the transfer or should replace the odometer with one that reflects the total miles the vehicle has travelled. Replacing the odometer with one that shows all the miles the vehicle has traveled on both odometers has the advantage of reducing the possibility that the t ransferee in this or subsequent transactions would be misled by the number of miles showing on the odometer, or confused by the difference between that figure and the total shown on the title. This approach does require removal of the door sticker to av oid further confusing a subsequent purchaser. However, it is not illegal to remove such a sticker when there is no intent to defraud. 49 U.S.C. @ 32704(b).

The alternative, which the agency believes is not desirable, would be to leave the present odometer in the car set at its present reding, and leave the sticker on the door jamb. The problem with this option is that the sticker does not provide as durabl e a record of mileage as the odometer. A sticker can fall off, fade or be removed, creating the potential for confusion when the odometer reading is compared with the information on the title. The same confusion is possible even if the sticker is prese nt, because it might easily be overlooked.

I hope the information in this letter is helpful. If you have further questions concerning interpretation of the Federal odometer law and regulations, you may contact Eileen Leahy, an attorney on my staff, either at the above address or by telephone at (202) 366-5263. Other questions concerning the odometer fraud or the Federal odometer disclosure program may be directed to Mr. Richard Morse, Chief of NHTSA's Odometer Fraud Staff, at (202) 366-4761.

(Letter from Peter Marthy to NHTSA is not available.)