Interpretation ID: 19097.wkm

Mr. Stuart Leopold
DGS Enterprises, Ltd.
2800 Covered Bridge Road
Merrick, NY 11566

Dear Mr. Leopold:

Please pardon the delay in responding to your letter to Walter Myers of my staff in which you asked for a letter stating that use of your "Tire Mend" does not "violate" any Federal motor vehicle safety standards (FMVSS) and may be used in any vehicle. "Tire Mend" is not subject to any FMVSSs. The question of whether the use of "Tire Mend" would violate Federal law is addressed below.

Your letter described "Tire Mend" as a light gel-like substance that when injected into a tire, coats the interior of the tread, rim, and back of the valve stem to seal punctures of up to 5 millimeters (1/4 inch) in diameter. You stated that "Tire Mend" is non-toxic, non-flammable, biodegradable, and contains rust and corrosion inhibitors. You also stated that Goodyear Tire & Rubber Company and Yokohama Tire Corporation have told you that the use of "Tire Mend" does not invalidate their warranties; and that the State of New York has permitted the use of "Tire Mend" in that state.

By way of background information, the National Highway Traffic Safety Administration (NHTSA) has the authority under Chapter 301 of Title 49, U.S.Code (U.S.C.) (Safety Act) to issue FMVSSs applicable to new motor vehicles and new items of motor vehicle equipment. The Safety Act establishes a self-certification system in which manufacturers certify that their products comply with all applicable FMVSSs in effect on the date of manufacture. NHTSA enforces compliance with the standards by purchasing and testing motor vehicles and equipment. The agency also investigates safety-related defects. If NHTSA or the manufacturer ascertains that a vehicle or item of equipment does not comply with an applicable standard or has a safety-related defect, the manufacturer is responsible for notifying owners and for remedying the defect or noncompliance at no charge to the consumer. In view of that self-certification system, NHTSA does not approve, disapprove, test, endorse, or certify any motor vehicle or item of motor vehicle equipment prior to its introduction into the retail market.

NHTSA has not issued any FMVSSs specifically applicable to substances such as "Tire Mend." You stated in a recent telephone conversation with Mr. Myers that "Tire Mend" is primarily an aftermarket item that is currently used primarily by fleet operators and other medium to heavy vehicles and is not yet available to the general public. Section 30122 of the Safety Act provides that a manufacturer, distributor, dealer, or motor vehicle repair business may not knowingly "make inoperative" any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in accordance with any FMVSS. Therefore, any product such as "Tire Mend" could not be installed by one of those entities if such use adversely affected the compliance of a vehicle or tire with any FMVSS. This provision does not apply, however, to equipment attached to or installed on or in a vehicle or item of equipment by the vehicle owner.

The use of "Tire Mend" may be subject to the laws of various states in which it is sold and/or used. We are unable to advise you on state laws, thus we recommend that you check with the motor vehicle departments of the states in which you intend to market "Tire Mend." In that connection, you may also contact the American Association of Motor Vehicle Administrators, 4301 Wilson Blvd., Suite 400, Arlington, VA 22203, (703) 522-4200.

I note that the Federal Highway Administration has jurisdiction over commercial carriers in interstate commerce. We are therefore coordinating this response through the Program Manager for Motor Carriers and Highway Safety for that agency, this address, telephone (202) 366-4012.

For your information, I am enclosing a fact sheet prepared by this agency titled Information for New Manufacturers of Motor Vehicles and Motor Vehicle Equipment. This fact sheet provides general information on the requirements applicable to manufacturers of new motor vehicles and equipment.

I hope this information is helpful to you. Should you have any questions or need further information, feel free to contact Mr. Myers at this address or by telephone at (202) 366-2992, or fax at (202) 366-3820.

Sincerely,
Frank Seales, Jr.
Chief Counsel
Enclosure
ref:109#119
d.3/30/99