Please see below:  

 Ms. Lois GreismanFederal Trade Commission 600 Pennsylvania Avenue, NW

Dear Ms. Greisman: 

 Last fall, the organizations listed below wrote the Federal Trade Commission regarding a release from Honda and Acura that attempted to mislead consumers as to the quality of non-original equipment replacement parts and the possibility that use of these parts could void their new car warranties. We further contended that this release was a violation of the Magnuson Moss Warranty Act (MMWA) which prohibits the conditioning of warranties based on the use of a non-original equipment part. While the Commission chose not to take any action against Honda or Acura based on that release, we appreciate the consumer alert that the FTC issued earlier this year to inform consumers about their rights under federal warranty law. Our prediction that lack of enforcement action would encourage further egregious behavior, however, has come to pass.    generally made to a lower standard in order to cut costs and lack the testing required to determine their effectiveness in vehicle performance and safety (emphasis added).” None of the statements made are accompanied by any form of evidence nor, to our knowledge, does any such evidence exist for Mazda to provide if appropriately pressed. Our organizations take serious issue with this statement. Every day car owners or their service professionals use non-Mazda parts in the repair of their vehicle without any problem. In fact, many of these parts may have been produced by the very same factory that supplied the original component to Mazda—only the label on the box is different. In general there have not been any quality issues related to the use of non-original equipment parts on Mazda vehicles. Furthermore, the availability of non-original equipment parts has lead to more affordable repairs for Mazda car owners while ensuring quality repairs. We are extremely concerned that the unsupportable, harmful generalizations made in this release relative to the quality of the products produced by our industry are already wrongfully pushing consumers to give up their MMWA-guaranteed right to choose non-Madza brand products. We strongly request that the FTC call on Mazda either to provide substantiation of their claim that aftermarket parts are “generally made to a lower standard” or withdraw that claim and issue a public correction in the same venues and manner as the original release.

Once again, our groups must urge the Commission to take action against an automaker, this time Mazda, for violating MMWA in a release (see attached) issued on August 12, 2011. Like Honda, Mazda is misleading consumers regarding the use of aftermarket parts. Specifically, the release states that Mazda “recommends that all maintenance and collision repairs be performed using Genuine Mazda Parts in order to provide an optimum level of performance, safety and durability.” Mazda further states that it “does not recommend the use of aftermarket parts (or imitation parts) for any Mazda maintenance or collision repair…. These aftermarket parts are 

To make matters worse, Mazda’s release actually attempts to erode the manufacturer’s burden of proof under MMWA:

Thank you for your immediate attention and we look forward to the Commission’s response to this request.

CLEAN SCANNING ENFORCEMENT BY THE ATTORNEY GENERAL’S OFFICE

A.G. SCHNEIDERMAN ARRESTS FOUR MOTOR VEHICLE INSPECTORS FOR FAKING THOUSANDS OF INSPECTIONS & PASSING UNTESTED CARS IN NYC

Undercover Investigation Reveals Employees At Four Of NYC’s Busiest Inspection Stations Okayed Cars Without Conducting Mandatory Safety Reviews

NEW YORK – New York Attorney General Eric T. Schneiderman today announced the arrests of four New York City motor vehicle inspectors who issued more than 7,000 fraudulent inspection certificates to untested vehicles. Each defendant was charged with numerous felony counts for violations of New York State Vehicle and Traffic Law, Penal Law and Environmental Law, which could carry millions of dollars in fines and years in prison.

“These individuals were trusted to perform state-required inspections that keep unsafe cars off the road, but instead they took advantage of their expertise to cheat the system,” Attorney General Schneiderman said. “My office has zero tolerance for misconduct that puts New Yorkers at risk, and will continue to hold accountable those who commit these crimes.”

New York State Department of Motor Vehicles Commissioner Barbara J. Fiala said, “When businesses are authorized to conduct vehicle inspections, it is our expectation that those businesses will perform the inspection as required by the Vehicle and Traffic Safety Law and only issue inspection stickers to those vehicles that qualify as safe and operate within Federal emission standards.”

New York State Department Of Environmental Conservation Commissioner Joe Martens said, “One of DEC’s major priorities is to protect and promote New York’s air quality.  As part of this effort, our Division of Law Enforcement has worked closely with other agencies to crack down on vehicle pollution in urban settings to prevent harmful emissions from impacting communities. Attempts to threaten vehicle inspection and maintenance processes can have unsafe and environmentally hazardous consequences and simply cannot be tolerated. DEC will continue to work with the Attorney General and all our partners to enforce the state’s emissions inspection criteria and to ensure all environmental protections are enforced.”

Every motor vehicle registered in New York State must be inspected annually for safety and appropriate emissions compliance. The defendants were employed at four of New York City’s busiest Department of Motor Vehicle (DMV)-licensed inspection stations, which are legally required to use DMV-regulated equipment and follow standard procedures to conduct inspections.

According to the complaints, the defendants bypassed these procedures by performing “clean scans,” a fraudulent process that substitutes data from a secondary vehicle. The inspector first entered the identification number, model information and license plate number for the vehicle in need of certification. The inspector then connected the DMV computer to a secondary vehicle, and used its data to “pass” the safety and emissions tests for the vehicle in need of certification. A fraudulent inspection certificate was issued for the untested vehicle, which would potentially have failed an inspection or was not even present.

The complaint indicates that the defendants charged additional fees for “clean scans.” Motor vehicle inspections are set at $37, but the “clean scans” brought in anywhere from $60 to $100, more than twice the legally authorized amount.

The Attorney General’s office along with the DMV and Department of Environmental Conservation (DEC) conducted an undercover operation at the four stations. An undercover investigator took a vehicle that was rigged to fail a legitimate motor vehicle inspection to each station, and each station provided passing inspection results to the vehicle even though the inspectors performed minimal or no actual inspection on it.   

The defendants are all being charged with Criminal Possession of a Forged Instrument in the Second Degree, a class D felony that carries a maximum sentence of 2 1/3 to 7 years in prison.  Other charges include Issuing a False Certificate, a class E felony carrying a maximum sentence of 1 1/3 to 4 years in jail, and Illegal Issuance of an Emission Certificate of Inspection, an unclassified misdemeanor that carries a fine of $15,000 per count, which could subject defendants to millions of dollars in fines if they were to be convicted of all counts.  

Flouting these state requirements allows thousands of substandard vehicles to remain on New York roads, leading to increased safety risks for drivers and the significant degradation of New York’s air quality. Stations that utilize “clean scans” also gain an unfair advantage over law-abiding facilities by substantially decreasing both the amount of time and the supply of skilled workers needed to conduct vehicle inspections. 

The case is being prosecuted by Assistant Attorney General Jason P. Garelick of the Environmental Crimes Unit under the supervision of Deputy Bureau Chief for Criminal Prosecutions Stephanie Swenton, Bureau Chief Gail Heatherly, and Executive Deputy Attorney General for Criminal Justice Nancy Hoppock.

The investigation was conducted by Environmental Conservation Investigator Kevin Gilmartin of DEC, Division of Law Enforcement, Bureau of Environmental Crimes Investigation, under the supervision of Lieutenants John Fitzpatrick and Francisco Lopez, Captain Joseph Schneider, and Major Scott Florence, along with Investigator Sal Ventola of the New York State Office of the Attorney General, under the supervision of Deputy Chief Investigator John McManus. Assisting in the investigation for DMV were Senior Automotive Facility Inspector Gary Della Torre, Automotive Facility Inspectors Daryl Robertucci, Vito Vitulli, Kevin Sola, Tim Osterhout, Technical Services and John Irving, Director of Clean Air and Technical Services.

The Attorney General recognizes the diligent work of the DEC and DMV staff with whose cooperation the case developed, particularly James Clyne, DEC, Chief, In-Use Programs Section, Division of Air Resources and Chris Ayers, DMV, Director of Vehicle Safety Field Services.   

The charges are merely accusations and all defendants are presumed innocent unless and until proven guilty in a court of law.

As reported by the Attorney General’s website

Click on the link below, then from the administrative rules page, click on RULE MAKING ACTIVITIES to view the document.

• http://www.dos.state.ny.us/info/register/2011/may11/toc.html

As such, we want to ensure that facilities understand when and how to issue these waivers.  We also want to make you aware of what we are doing to ensure New York State is in compliance with the Environmental Protection Agency mandated emissions waiver requirements.

Vehicle Safety is currently conducting increased audits of selected facilities.  If problems are found during an audit, you will be in jeopardy of having your facility license suspended or permanently revoked.  Stations and Certified Inspectors charged with violations may be brought to an Administrative Hearing and face possible fines, suspension or revocation.

Below is a brief summary of the circumstances which must be present in order for an inspection station to legitimately issue an emissions waiver:

1. The vehicle in question has failed the initial emissions inspection.
2. The safety inspection has been passed.
3. All Emissions Control Devices have passed (present and connected).
4. At least $450 of emissions repairs have been made that specifically address the reason for the initial failure.
5. The vehicle in question still fails the emissions inspection.

Here are some common problems we are seeing in waiver audits:

1. Pre-scanning vehicles before inspection.  Repairs performed before the initial emissions inspection failure do not count toward the criteria for issuing an emissions waiver. You should not pre-scan, but should inspect first. If the vehicle fails, all repairs after the failure and related to the failure will count toward the $450 waiver threshold.
2. An improper entry of emissions repairs such as entering repairs not emissions-related or entering costs incorrectly. The inspector should enter costs in whole dollars.
3. The waiver form as printed by the NYVIP unit must be properly signed by the motorist and the certified inspector and maintained by the facility.

The specific rules and requirements can be found in the Inspection Regulations, section 79.25 on the DMV website.  If you need a copy of the Inspection Regulations, you may call the Vehicle Safety Supply Unit at 518-474-3375 and one can be mailed to you.

You should review the proper emissions waiver procedure with your inspectors and verify all waivers issued in your business are issued appropriately.

If you have any questions regarding this issue, contact the Office of Clean Air at 518-473-0597 or your local Vehicle Safety Regional Office.

This is a brief summary of the circumstances which must be present in order for an inspection station to legitimately issue an emissions waiver:

1. The vehicle in question has failed the initial emissions inspection
2. The safety inspection has been passed
3. All Emissions Control Devices have passed (present and connected)
4. At least $450 of emissions repairs have been made that specifically address the reason for the initial failure
5. The vehicle in question still fails the emissions inspection

Here are some common problems reported by DMV from waiver audits:

1. Pre-scanning vehicles before inspection.  Repairs performed before the initial emissions inspection failure do not count toward the criteria for issuing an emissions waiver. Even if it is obvious that that the vehicle will fail, you should not pre-scan, but should inspect first. Repairs used to qualify for the waiver must relate to the reason for that failure. If there is no failure, then there is no way to determine if the repairs are proper. If the vehicle fails, all repairs after the failure and related to the failure will count toward the $450 waiver threshold.
2. An improper entry of emissions repairs such as entering repairs not emissions-related or entering costs incorrectly. The inspector should enter costs in whole dollars. Non-emissions related items such as brakes, etc., do not count. The reason why repairs were made must be documented. It’s not enough to replace spark plugs, the reason why the plugs were replaced must be documented. What codes or diagnosis led to that repair?
3. The waiver form as printed by the NYVIP unit must be properly signed by the motorist and the certified inspector and maintained by the facility.

Additionally, although it is not necessarily improper to issue a waiver after repair when the monitors are not ready, the repair shop should document what they did to try to set the monitors.

It is very important to retain copies of all invoices and parts receipts for the repairs list to qualify for the waiver. It is also very important to get the motorist’s signature on the completed waiver form and to keep all these documents for two years.

The specific rules and requirements can be found in the Inspection Regulations, section 79.25 on the DMV website.  If a facility needs a copy of the Inspection Regulations, they may call the Vehicle Safety Supply Unit at 518-474-3375 and one can be mailed to them.

If you have any questions regarding this issue, please contact the Office of Clean Air at 518-473-0597

          As many of you have known, in 2009 we entered into a lawsuit against the State of New York in which we were defending all places of business who sell tobacco products and were now being subject to pay the license fee based on their gross sales.  Since then, while the lawsuit was going on, a stay was issued and retail dealers were only to pay the fee of $100.00 per location and vending machine.  If the case was lost then the state would have been allowed to collect fees based on gross sales for the last two years.  Well goods news, the case was won!!!    The annual registration fees are now a flat rate of $300.00 for each retail location and $100.00 for each vending.  These fees are retroactive to the 2010 and 2011 calendar years.  If you are a dealer that paid a fee based on your gross sales you will be issued a refund for those years.   If you paid the $100.00 fee you will be required to pay the difference of $200.00 for each year.   The refunds will be generated automatically.  There is no need for you to fill out an application.  If you do not receive your refund by September 1, 2011 contact the NYS Dept of Taxation and Finance at 518-485-7652.

We have several phone calls pertaining to the classification of service writers in this industry.    The New York State Insurance Fund currently does not recognize service writers as a classification for the group.  We need to approach the rating board of the NYSIF and explain to them what the duties of these types of employees are.  If you are interested in making a difference please answer the questions below and return them or email them to the association.

• Does your shop currently employ service writers?________  If no, do you intend on hiring one in the future? ________

• How are your employees classified? (Check all that apply)

_____ Technicians (mechanics)

_____ Clerical

_____ Service writers (would be classified as salespeople)

_____ Business Owners

• What are the rates being charged for the different classifications?

______________________________________

• How often do your service writers enter the shop area?

______________________________________

• Do your service writers drive the cars in and out of the bays?

______________________________________

As soon as we receive these surveys we will approach the NYSIF rating board and discuss with them the reasons for the classification of service writers.

Thank you for your participation.

This is important for our industry to survive!

The bill requires:

• Tobacco sellers to verify the age of buyers who purchase tobacco products online or over the phone.
• Sellers to keep delivery sales records.
• Sellers of cigarettes and smokeless tobacco to include notices about excise tax requirements and would bar shipments of cigarettes or smokeless tobacco that weigh more than 10 pounds.
• Sellers that violate the new rules could face up to three years in prison or civil penalties of up to 2 percent of their gross sales from the year before the violation.

On to the full Senate – please consider sending the letters.

More Information:

• HR 4154 IH

• PACT Act Background

HR 4154 IH

111th CONGRESS

1st Session

H. R. 4154

To amend the Internal Revenue Code of 1986 to repeal the new carryover basis rules in order to prevent tax increases and the imposition of compliance burdens on many more estates than would benefit from repeal, to retain the estate tax with a $3,500,000 exemption, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

November 19, 2009

Mr. POMEROY introduced the following bill; which was referred to the Committee on Ways and Means

A BILL

To amend the Internal Revenue Code of 1986 to repeal the new carryover basis rules in order to prevent tax increases and the imposition of compliance burdens on many more estates than would benefit from repeal, to retain the estate tax with a $3,500,000 exemption, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Permanent Estate Tax Relief for Families, Farmers, and Small Businesses Act of 2009′.

SEC. 2. RETENTION OF ESTATE TAX; REPEAL OF CARRYOVER BASIS.

(a) In General- Subtitles A and E of title V of the Economic Growth and Tax Relief Reconciliation Act of 2001, and the amendments made by such subtitles, are hereby repealed; and the Internal Revenue Code of 1986 shall be applied as if such subtitles, and amendments, had never been enacted.

(b) Sunset Not To Apply- Section 901 of the Economic Growth and Tax Relief Reconciliation Act of 2001 shall not apply to title V of such Act.

(c) Conforming Amendments-

(1) Sections 511(d) and 521(b)(2) of the Economic Growth and Tax Relief Reconciliation Act of 2001, and the amendments made by such sections, are hereby repealed; and the Internal Revenue Code of 1986 shall be applied as if such sections, and amendments, had never been enacted.

(2) Subsection (c) of section 2511 of the Internal Revenue Code of 1986 is hereby repealed.

SEC. 3. MODIFICATIONS TO ESTATE AND GIFT TAXES.

(a) $3,500,000 Applicable Exclusion Amount- Subsection (c) of section 2010 of the Internal Revenue Code of 1986 (relating to applicable credit amount) is amended by striking all that follows `the applicable exclusion amount’ and inserting `. For purposes of the preceding sentence, the applicable exclusion amount is $3,500,000.’.

(b) Freeze Maximum Estate and Gift Tax Rates at 45 Percent- Subsection (c) of section 2001 of such Code is amended–

(1) by striking paragraph (2),

(2) by striking so much of paragraph (1) as precedes the table contained therein, and

(3) by striking the last 2 items in the table and inserting the following new item: