Interpretation ID: nht94-4.29

TYPE: INTERPRETATION-NHTSA

DATE: September 16, 1994

FROM: John Womack -- Acting Chief Counsel, NHTSA

TO: Harleigh Ewell, Esq. -- Regulatory Affairs Division, Office of the General Counsel, Consumer Product Safety Commission

TITLE: NONE

ATTACHMT: ATTACHED TO LETTER DATED 01/27/94 FROM H. EWELL TO DAVID ELIAS (OCC 9615)

TEXT: This letter responds to your inquiry whether gasoline pump nozzle/hose assemblies (referred to collectively in this letter as "gas nozzles") are an item of motor vehicle equipment. The answer is no. To answer your question, we conducted a detailed exam ination of our past interpretations of what constitutes "motor vehicle equipment" under our statute.

As you are aware, the National Highway Traffic Safety Administration (NHTSA) is authorized to issue Federal motor vehicle safety standards for new motor vehicles and new items of motor vehicle equipment. NHTSA's authority was recently recodified in titl e 49 of the U.S. Code. Section 30102(a) (7) (formerly section 102 (4) of the National Traffic and Motor Vehicle Safety Act of 1966) defines the term "motor vehicle equipment" as:

(A) any system, part, or component of a motor vehicle as originally manufactured; (B) any similar part or component manufactured or sold for replacement or improvement of a system, part, or component, or as any accessory or addition to a motor vehicle ; or (C) any device or an article . . . that is not a system, part, or component of a motor vehicle and is manufactured, sold, delivered, offered, or intended to be used only to safeguard motor vehicles and highway users against risk of accident, injury, or death. (Emphasis added.)

The only portion of this definition that gas nozzles could even conceivably fall within is the term "accessories." Proceeding by the process of elimination, a gas nozzle is neither a "system, part, or component" of a motor vehicle as originally manufactu red nor as a replacement or improvement for or to a system, part or component because a gas nozzle never becomes part of the vehicle and cannot realistically be considered part of the vehicle's fuel system. For the same reason, it is not an "addition" t o a motor vehicle. A gas nozzle is not a "device, article, or apparel" because it is not exclusively used as a safeguard from risk of accident, injury, or death. The sole remaining possibility is that gas nozzles may be an "accessory." This question is addressed below.

The agency has typically used two criteria in determining whether a device is an "accessory." These criteria were discussed extensively in a May 25, 1990 letter to Susan Birenbaum, at the time the Acting General Counsel of your commission. The first crit erion is whether a substantial portion of the expected use of the item is related to the operation or maintenance of motor vehicles. We determine a product's expected use by considering product advertising, product labeling, and the type of store that r etails the product, as well as available information about the actual use of the product. The second criterion is whether the product is intended to be used principally by ordinary users of motor vehicles. If a product satisfied both criteria, then the product has been considered to be an "accessory."

An allied concept that has been implicit in NHTSA's interpretations is that the item be purchased or owned by the consumer. This concept reinforces the "ordinary user" concept in the second criterion of the test by generally restricting accessories to c onsumer items that we believe Congress intended us to regulate. Examples of items that, without the purchase concept, might be accessories include self-serve car wash equipment, and air pumps and even gas pumps themselves. In making this concept explic it, NHTSA will be stating the criteria for determining whether an item is an accessory as follows:

(1) A substantial portion of its expected uses are related to the operation or maintenance of motor vehicles; and

(2) it is purchased or otherwise acquired, and principally used, by ordinary users of motor vehicles.

Applying these criteria to gas nozzle/hose assemblies, we conclude that they are not accessories. While gas nozzles have a principal use that is arguably related to the operation and maintenance of motor vehicles, gas nozzles fail the second criterion o f the test. While they are used by ordinary users of motor vehicles, they are not purchased or acquired by those users. It is therefore our opinion that gas nozzles are not motor vehicle equipment.

I hope this information is helpful. If you have any further questions, please feel free to contact us at this address or by telephone at (202) 366-2992.