Interpretation ID: 19809-1.bk!

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

Dear Mr. Leopold:

This responds to your letter of April 1, 1999, addressed to Walter Myers of my staff, in which you sought clarification of my letter to you of March 30, 1999. You stated that the people to whom you would like to show my March 30 letter might not understand some of the legal discussions. You asked, therefore, that we rephrase the March 30 letter to state that the use of "Tire Mend" is neither endorsed nor prohibited by the Federal motor vehicle safety standards (FMVSSs).

I am sorry you found that our earlier letter might be difficult for some people to understand. However, there is a limit to the extent to which we can simplify our discussion of how various requirements in 49 U. S. Code, Chapter 301 (Safety Act) might affect your product.

We are charged with enforcing the Safety Act in its entirety and not just the FMVSSs. In considering how a product may be affected by the statutes and regulations we administer, we consider application of the many different parts of the Safety Act. We also consider the various persons who may ultimately read our opinion letters.

I stated in my March 30 letter that because of the self-certification system established by the Safety Act, we neither "approve, disapprove, test, endorse, or certify" motor vehicles, motor vehicle equipment, or related products. I also said in my letter that "the National Highway Traffic Safety Administration has not issued any FMVSSs specifically applicable to substances such as 'Tire Mend'".

We cannot make the categorical statement, however, that the use of "Tire Mend" is not prohibited under the Safety Act. I explained the "make inoperative" provision of the Safety Act in my letter. As applied to your product, the issue is not whether the product is expressly addressed in the FMVSSs, but whether a provision of the Safety Act would prohibit the installation of "Tire Mend" if the product adversely affected the compliance of a tire with the FMVSSs. I also explained that the "make inoperative" provision applies only to manufacturers, distributors, dealers, and repair businesses, but does not apply to vehicle owners. Nevertheless, this agency encourages vehicle owners to maintain the safety of their vehicles and equipment and not make changes that would adversely affect compliance with a safety standard.

I hope this explanation of my March 30 letter is helpful to you.

Sincerely,
Frank Seales, Jr.
Chief Counsel
ref:119
d.6/23/99