Interpretation ID: 1984-1.31

TYPE: INTERPRETATION-NHTSA

DATE: 04/03/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: McGraw-Edison Company

TITLE: FMVSS INTERPRETATION

TEXT:

Mr. R. G. Brown Chief Engineer Materials Engineering McGraw-Edison Company 18448 Craig Road St. Louis, Missouri 63146

Dear Mr. Brown:

This responds to your letter concerning Safety Standard No. 116, Motor Vehicle Brake Fluids. You asked whether paper labels on brake fluid containers are sufficient to comply with the "indelibly marked" requirements of the standard. As discussed below, the answer to your question is no.

By way of background information, I would note that NHTSA does not grant approvals of motor vehicles or motor vehicle equipment. Under the National Traffic and Motor Vehicle Safety Act, it is the responsibility of the manufacturer to determine that its motor vehicles or motor vehicle equipment comply with applicable safety standards. The following represents our opinion based on the facts provided in your letter.

Section S5.2.2.2 of Standard No. 116 states:

Each packager of a brake fluid shall furnish the following information clearly and indelibly marked on each brake fluid container. . . .

It is our opinion that this section requires the relevant information to be marked directly on the brake fluid container and not merely on a label, whether paper or of some other material, that is affixed to the container. This is clear both from the plain language of the section and from the Federal Register notices proposing and adopting that language.

In a notice of proposed rulemaking published on September 30, 1970, NHTSA proposed the following language as part of the packaging and labeling requirements for motor vehicle brake fluids:

S4.2.2.2 Each packager of brake fluid shall furnish to each distributor or dealer to whom he sells brake fluid, the following information clearly and indelibly marked on each brake fluid container, or on a label or tag firmly attached to each such container. . . . 35 FR 15229, 15231.

The final rule, published on June 24, 1971, did not adopt the proposed alternative of permitting the information to be provided on a label or tag firmly attached to the container, but instead required the information to be clearly and indelibly marked on each brake fluid container. The language as adopted, which is very similar to the current language, was:

S5.2.2.2 Each packager of motor vehicle brake fluid shall furnish the following information clearly and indelibly marked on each brake fluid container. . . . 36 FR 11987, 11989.

If you have any further questions, please let me know.

Sincerely,

Frank Berndt Chief Counsel

October 5, 1983 Mr. Frank Berndt Chief Counsel National Highway Traffic Safety Administration 400 7th Street, S.W. Washington, D.C. 20590

Dear Mr. Berndt:

I am writing to you with regard to paragraph S5.2.2.2 of Motor Vehicle Safety Standard 116 which reads in part as follows:

"Each packager of a brake fluid shall furnish the following information clearly and indelibly marked on each brake fluid container, . . . . "

I have observed a number of brands of brake fluids in the marketplace packaged in containers having a loose-fitting paper sleeve for the label. In the past we have been requested to supply brake fluid in containers with paper labels and have declined to do so on the basis that in my judgment a paper label does not comply with the requirement "indelibly marked".

Within the past few weeks we have been approached once again to supply brake fluid in containers with paper labels. We are reluctant to pursue this matter unless we have some assurance that a paper label does, indeed, comply with the "indelibly marked" provision of paragraph S5.2.2.2 FMVSS-116.

Please advise at your earliest convenience.

Very truly yours,

WAGNER DIVISION McGRAW-EDISON COMPANY

R. G. Brown Chief Engineer Materials Engineering RGB:ab