ID: Copy of 05-009466drn

ID: 07-001810 Nordkil--draft (18 May 07)

ID: 07-001810LizG

ID: nht76-3.15

DATE: 09/30/76

FROM: AUTHOR UNAVAILABLE; Frank A. Berndt; NHTSA

TO: Mr. Bing Johnson

TITLE: FMVSS INTERPRETATION

TEXT: This is in response to your letter of August 16, 1976, in which you ask about our regulations concerning the modification of "vans" to make them suitable for camping. The modifications you propose to make include the installation of plumbing, water, electricity, and additional seating.

The National Traffic and Motor Vehicle Safety Act (15 U.S.C. @@ 1381, et seq.) prohibits the manufacture, offer for sale, sale, introduction in interstate commerce or importation of a motor vehicle that does not comply with all applicable standards in effect on the date of its manufacture. This prohibition does not apply (except for importation) after the first purchase of the vehicle in good faith for purposes other than resale. Under these provisions, you are responsible for the compliance of any vehicle that you modify up to and including the time of first purchase for purposes other than resale.

The manufacturer must comply with all applicable safety standards established by the National Highway Traffic Safety Administration (NHTSA). His certification appears on a completed vehicle. It would be your responsibility to ensure that the vehicle continues to comply with all applicable safety standards after your modifications. Under Part 567 of our regulations, you must attach a label to the vehicle that states that, as altered, the vehicle continued to conform to the standards.

From the description of the modifications you describe, it appears that you might affect the compliance of the vehicle with the following standards: Standard No. 207, Seating Systems; Standard No. 208, Occupant Crash Protection; Standard No. 210, Seat Belt Assembly Anchorages; and Standard No. 302, Flammability of Interior Materials. It should be noted that any additional weight created by your modifications or a change in the distribution of weight could also affect the vehicle's compliance with other safety standards whose test procedures require a barrier crash test.

We also would point out that if you modify a Ford "Econoline" in all probability you would change the vehicle classification from a truck to a multipurpose passenger vehicle. This should be noted on the certification label that you attach to the vehicle.

I have enclosed an information sheet that explains where you may obtain copies of these regulations.

Sincerely,

Aug. 16, 1976

Dear Sir, I am interested in your policies and regulation for camping, vans. I am planning to do modifications of standard manufactured vans (e.g: Ford "Econoline") which would involve plumbing, water, electrical (no (Illegible Lines)) seating.

Thank you in advance for your prompt attention.

Bing Johnson

ID: 000940 rbm

Robert C. Lange, Executive Director
Vehicle Structure and Safety Integration
GMNA Product Development
General Motors Corporation
30200 Mound Road
Warren, MI 48092-2025

Dear Mr. Lange:

This responds to your request asking whether a GM driver and passenger seat belt reminder system recently developed by General Motors Corporation (GM) violates any Federal motor vehicle safety standards. The GM system, as described, is not prohibited by any such standards.

According to your letter, the GM system consists of a multi-stage chime and lamp warning cycle that lasts 75 seconds and is repeated three times per ignition cycle. Buckling the driver or passenger seat belt at any time will stop all warning systems for that seating position. Each cycle consists of three phases. The first phase lasts 8 seconds and consists of both a chime and a seat belt warning lamp. The next, 12-second phase consists of a seat belt warning lamp without a chime. The third phase lasts 55 seconds and consists of a flashing seat belt warning lamp. The first cycle begins when the ignition is turned on. The second cycle follows 30 seconds after the first cycle is completed, and the third stage follows 180 seconds after the second cycle is completed.

The only safety standard that could conceivably prohibit the GM system is Federal motor vehicle safety standard No. 208, Occupant crash protection (FMVSS No. 208). S7.3 of that standard requires the driver's seating position be equipped with a seat belt warning system that activates, under specified circumstances, a continuous or intermittent audible signal for a period of "not less than 4 seconds and not more than 8 seconds," and a continuous or flashing warning light for not less than 60 seconds after the ignition switch is turned on. The 75-second cycle described in your letter meets both of these criteria. Thus, the only remaining question is whether the two additional cycles are permitted under the standard.

The prohibition on any audible signal lasting longer than 8 seconds reflects a statutory requirement imposed by Congress in response to public resistance to seat belt interlock systems.[1] 49 U.S.C. 30124 provides, in relevant part, that a motor vehicle safety standard "may not require or allow a manufacturer to comply with the standard by...using...a buzzer designed to indicate a safety belt is not in use, except a buzzer that operates only during the 8-second period after the ignition is turned to the 'start' or 'on' position."

While the statute prohibits the National Highway Traffic Safety Administration from requiring, or specifying as a compliance option, an audible seatbelt warning that sounds outside of the specified 8-second period, it does not prohibit vehicle manufacturers from placing such systems in their vehicles. However, given FMVSS No. 208's requirement that the required seat belt warning be no longer than 8 seconds, a vehicle manufacturer wishing to provide a voluntary audible signal must provide some means of differentiating the voluntarily provided signal from the required signal. One way to differentiate between the two signals is a clearly distinguishable lapse in time between the two signals. The GM system, as described, provides a 97-second interval between the first and second audible signals and a 247-second interval between the second and third audible signals. These time lapses are sufficiently long to make the second and third audible signals clearly distinguishable from the initial, required 8-second signal. Accordingly, the two additional cycles are permitted under the standard.

I hope this information addresses your concerns. If you have any further questions, please feel free to contact Rebecca MacPherson of my staff at (202) 366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

ref.208
d.2/38/03





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[1] See House report 93-1452, pp. 44-45.

ID: nht80-3.8

DATE: 06/23/80

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Flair Interiors Inc.

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your recent letter asking whether an assembler of automotive seating would be responsible for defects in the metal frames used in the seats. Apparently, you purchase metal frames from a supplier and then pad and cover them as vehicle seats.

The National Highway Traffic Safety Administration issues safety standards and regulations governing the manufacture of motor vehicles and motor vehicle equipment pursuant to authority of the National Traffic and Motor Vehicle Safety Act, as amended 1974 (15 U.S.C. 1381, et seq.). There are two safety standards directly applicable to vehicle seating, Standard No. 207, Seating Systems, and Standard No. 302, Flammability of Interior Materials. However, both of these standards apply only to completed vehicles and are, therefore, the responsibility of the vehicle manufacturer, not a supplier such as your company.

In addition to the Federal safety standards, manufacturers of motor vehicles and motor vehicle equipment are responsible for any defects in their products which affect motor vehicle safety. Under 49, Code of Federal Regulations, Part 579.5, the vehicle manufacturer is responsible for any safety-related defect determined to exist in the vehicle or in any item of original equipment, including the original seats. Each manufacturer of an item of replacement equipment is responsible for any safety-related defect in that equipment. Therefore, if you are selling your seats to a vehicle manufacturer, that manufacturer would be responsible for the seats. If, however, you are selling the seats as aftermarket equipment, you would be responsible for their safety.

This means you would have to recall the equipment and remedy free of charge any defect relating to motor vehicle safety. If the defect resulted from faulty frames, you could still be held responsible for the seat under Federal law, since you would be considered the manufacturer. You will have to contact a private attorney to determine whether you would then have a right of action against the manufacturer of the seat frames.

SINCERELY,

Flair Interiors, Inc.

May 14, 1980

Office of Chief Council National Highway Traffic Safety Administration

Dear Sir,

We are a sewing room that assembles automotive seating. We purchase metal frames and cover them with poly foam and fabrics in various styles. I have had a telephone conversation with Mr. Vince Querrils from the Office of Safety Standards, and I understand from him that we would not be held liable for the metal frames since we do not manufacture them. Is this correct? We need to know what our responsibilities are concerning the safety codes on this type of product.

Thank you for any information you can give us in regards to this.

SINCERELY,

Ms. Frances Zinn

President

ID: aiam5054

Dear Mr. Lawrence: This responds to your March 5, 1992 letter to th Administrator on the subject 'Petition for Rulemaking - FMVSS 108 Turn Signal Installation Requirements.' In that letter, Volvo GM petitioned 'for the revocation of the 'Figure 2' requirements published in the December 12, 1991, Register. . . .' However, the notice published on that date (56 FR 64733) was not an amendment of Federal Motor Vehicle Safety Standard No. 108. Instead, it was only a denial of a petition for rulemaking to allow tail lamps on vehicles 80 inches or wider to be mounted at locations up to 24 inches forward of the extreme rear of the vehicle, and to allow turn signal and stop lamps to be mounted up to 60 inches forward of the rear instead of 'on the rear' as required by Standard No. 108. Paragraph S5.3.1.1 of Standard No. 108 expresses the general requirement that lamps be located so as to meet the visibility requirements specified in any applicable SAE standard. Figure 2 was included in the notice to illustrate the agency's interpretation of the visibility requirements for stop, tail, and turn signal lamps set forth in specific SAE vehicle lighting standards incorporated by reference in Standard No. 108. A copy of that figure is enclosed. However, Figure 2 is not incorporated into Standard No. 108 itself. Since Figure 2 is not part of Standard No. 108, a petition for rulemaking is not the appropriate way to address the problem you have raised. Accordingly, we are treating your letter as a request to change our interpretation of the SAE's specifications. As explained below, the agency is adopting a new interpretation that is consistent with your concerns and arguments. The rationale for the agency's denial of the petition was that the amendments requested would adversely affect the ability of the lamps to meet the SAE specifications incorporated into Standard No. 108 that the lamps on both sides of a vehicle's rear end be simultaneously visible from any angle between and including 45-degree angles to the rear left and right of the vehicle. As noted above, Figure 2 pictorially represents NHTSA's interpretation of the SAE's uniform geometric visibility requirements. Using the SAE standard for turn signal lamps on wide vehicles as an example, NHTSA provided the following quotation from J1395: 'Signals from lamps on both sides of the vehicle shall be visible through a horizontal angle from 45 deg. to the left for the left lamp to 45 deg. to the right for the right lamp. * * * To be considered visible, the lamp must provide an unobstructed view of the outer lens surface, excluding reflex of at least 13 sq. cm. measured at 45 deg. to the longitudinal axis of the vehicle.' Since the SAE measurement of photometry is made at a distance of 3 meters from the lamp, NHTSA also stated that compliance with the visibility requirements is to be determined at a distance of 3 meters. NHTSA's interpretation of the SAE language quoted above, which Figure 2 illustrates, and which you have found objectionable, was: 'Thus, the turn signals on both sides of the vehicle must be simultaneously visible through a horizontal angle from 45 degrees originating at the left lamp, to the left to 45 degrees to the right originating at the right lamp measured at a radius of 3 meters.' You state that the term 'simultaneously visible' does not appear in the SAE specifications. You also argue that the 3 meter requirement has no connection to the 45-degree installation visibility. These issues have also been raised with us by the Motor Vehicle Manufacturers Association (MVMA), which met with us to express its views, not only on turn signal lamps, but stop and tail lamps as well, and by Ford Motor Company, and Freightliner, Corp. in several telephone calls. We are furnishing copies of this response to these three parties, as well as to the original petitioner, Truck Trailer Manufacturers Association (TTMA). First of all, let me assure you that NHTSA had no intention of imposing any new requirements upon industry in its interpretation reflected in Figure 2, and that the reaction of industry to this interpretation came as a surprise to us. Although your letter concerns only the turn signal specifications for wide vehicles, we have reviewed this matter with respect to tail lamps and stop lamps as well, given the concern of other industry members. Our review has led us to place added weight on the fact that the SAE visibility requirements are not consistently expressed from SAE standard to SAE standard. This difference in expression particularly calls into question our interpretation regarding turn signals. This same difference has led MVMA to apply one interpretation to turn signals, and another to stop and tail lamps. We shall discuss these two interpretations separately, and compare them with NHTSA's single, across-the-board interpretation. Under NHTSA's interpretation, the minimum specified lens area of a left stop, turn signal, or tail lamp, as seen at 45 degrees to the left of that lamp, must also be seen at 45 degrees to the right of the right lamp, and at all degrees in between (and vice versa) when viewed at a 3-meter radius from the rear. As suggested above, MVMA does not believe that an across-the-board interpretation is appropriate, given the different expression of the turn signal specification for vehicles in J1395 and J588. SAE J1395 provides that visibility is 'from 45 deg. to the left for the left lamp to 45 deg. to the right for the right lamp.' (Emphasis added.) The first underlined passage suggests that the viewing angle is a left 45 deg. angle, using a line parallel to the vehicle longitudinal axis as the frame of reference for that angle, and that this viewing angle relates to the left signal lamp only. The passage says that the angle is 45 deg. to the left 'for' the left lamp, and not 45 deg. to the left of that lamp. The second underlined passage indicates a similar limitation on the applicability of the language regarding the 45 deg. angle to the right. Even more specific is the corresponding requirement in SAE J588 NOV84, Standard No. 108's specification for turn signals on vehicles less than 80 inches wide. It provides: 'signals from lamps mounted on the left side of the vehicle shall be visible through a horizontal angle of 45 deg. to the left and signals from lamps mounted on the right side of the vehicle shall be visible through a horizontal angle of 45 deg. to the right.' For both wide and narrow vehicles, MVMA interprets the 45 degree left visibility requirement as applying only to the outboard side of the left turn signal lamp, and a 45 degree right visibility requirement only to the outboard side of the right turn signal lamp. NHTSA agrees that MVMA's interpretation regarding turn signal lamps is more fully consistent than NHTSA's interpretation with the language of these SAE standards. Adopting this interpretation moots the question of the particular distance at which visibility is to be determined. However, the fact that the SAE standard did not specify a measurement distance tends to strengthen the case for the MVMA interpretation since its interpretation obviates the need for a measurement distance, while the former NHTSA interpretation necessitated one. The MVMA and TTMA interpretations of the stop and tail lamp requirements are less clearly superior to NHTSA's in their faithfulness to the language of the SAE standards. Indeed, whether any of the competing interpretations is superior in this regard is harder to assess because the language regarding these lamps is more ambiguous. The SAE specifications for stop and tail lamps, incorporated in Standard No. 108, are respectively J586 FEB84 (narrow vehicles) and J1398 MAY85 (wide vehicles), and J585e Sept. 1977. Under all three of these SAE standards, 'signals from lamps on both sides of the vehicle shall be visible through a horizontal angle', which is specified as 'of 45 deg. to the left and to 45 deg. to the right' (J586), 'of 45 deg. to the left to 45 deg. to the right' (J1398), and 'from 45 deg. to the left to 45 deg. to the right' (J585e). TTMA and MVMA restrict the left-right 45 degree visibility requirement to the individual lamp in a horizontal plane, as shown in Figure 1 of the December 1991 notice. Under this interpretation, the minimum specified lens area that is seen at 45 degrees to the left on the left lamp must be seen at 45 degrees to the right of the left lamp, but need not be seen at 45 degrees to the right of the right lamp (and vice versa). In MVMA's view, there was never an intent by the SAE to expect that the minimum lens area of both lamps would be visible from both sides of the vehicle. MVMA also argued that there was no justification to use the photometric measuring distance of 3 meters to determine visibility. Some aspects of the SAE standards regarding stop and tail lamps seem to favor the MVMA/TTMA interpretation, while others favor the NHTSA interpretation. For example, if these SAE standards are interpreted in light of the interpretation given above to the SAE turn signal requirements, then those stop and tail lamp standards will be interpreted as specifying angles of visibility whose frame of reference is each individual lamp instead of the vehicle as a whole. As in the case of the turn signal requirement, the absence of a specified measurement distance for stop and tail lamp visibility tends to support an interpretation that does not depend on such a distance being specified. On the other hand, the absence of any language, like that found in J1395, relating the angle or angles of visibility to any individual lamp, suggests a single continuous horizontal angle spanning the entire rear of a vehicle. NHTSA has decided to adopt the TTMA/MVMA interpretation of the stop and tail lamp visibility requirements. We have said that NHTSA did not intend to impose new burdens on industry by its interpretation, and there appears to be no present safety justification to do so. The existing level of rear lighting safety on the nation's roads is that which is represented by industry's interpretation of the SAE visibility requirements. Thus, there would be no derogation of the existing level of safety by concurring with an industry interpretation. Further, given the lack of clear support for either of the competing interpretations, any attempt by NHTSA to apply its former interpretation to enforce these requirements in a court of law could be very problematic. This letter will serve as notice to the industry that the agency will follow the interpretations stated herein in its future enforcement activities. The SAE visibility materials do not specify any measurement distance. Therefore, to carry the new interpretation to its proper conclusion, NHTSA is no longer specifying a measurement distance of 3 meters to judge compliance with the visibility requirements. Industry and NHTSA are both in agreement, however, that, wherever located, any of these lamps are required by S5.3.1.1 to continue to meet its photometric output at any applicable group of test points, unless excepted by the subsequent conditions of that paragraph. Finally, you comment that Table II 'does not require the turn signals be located on the rear except for trailers'. We do not understand your remark since Table II clearly specifies that turn signal lamps be located on the rear of all vehicles to which the Table applies, and not trailers alone. Sincerely, Paul Jackson Rice Chief Counsel Enclosure cc: Motor Vehicle Manufacturers Association Truck Trailer Manufacturers Association Ford Motor Company Freightliner Corp.;

ID: 10335

Vincent Ugoletti, Chief Engineer
Great Lakes Communications, Inc.
3514 State St.
P.O. Box 860
Erie, PA 16512

Dear Mr. Ugoletti:

This responds to your September 7, 1994 letter to this office in which you stated your intention to modify a "conversion" van into a "production" van by replacing the original front seats with seats that swivel. You stated in an October 4 telephone conversation with Walter Myers of my staff that the vehicle in question is a 1994 cargo van. The vehicle has two front seats, and a gross vehicle weight rating (GVWR) of 9,680 pounds (lbs.). You also explained that the work will be done by a commercial vehicle modification shop. You asked us about the requirements for swivel front seats.

By way of background, 49 U.S.C. 30101, et seq. authorizes this agency to issue Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and new items of motor vehicle equipment. Under 49 U.S.C. 30112, each person selling a new vehicle must ensure that the vehicle is certified as complying with all applicable FMVSSs. NHTSA has five safety standards, described below, applicable to motor vehicle seats. The original seats and seat belts on your van were required to meet the requirements of those standards when the new van was sold to you.

The five standards set performance criteria ensuring that seats and seat belts provide safety benefits in a crash. Standard No. 207, Seating systems (49 CFR section 571.207), establishes strength and other performance requirements for vehicle seats. The standard does not prohibit the installation of swivel seats in vans. Standard No. 208, Occupant Crash Protection (49 CFR 571.208), specifically section S4.2.3, sets forth occupant protection requirements at the various seating positions in vehicles such as yours manufactured after September 1, 1991, and with a GVWR not greater than 10,000 lbs. Standard No. 209, Seat Belt Assemblies (49 CFR 571.209), sets strength, durability, and other requirements for seat belts. Standard No. 210, Seat Belt Assembly Anchorages (49 CFR 571.210), establishes strength and location requirements for

seat belt anchorages. Standard No. 302, Flammability of Interior Materials (49 CFR 571.302), specifies the flammability resistance of the seats and seat belts. Copies of those standards are enclosed, as well as a fact sheet explaining how to obtain copies of all FMVSSs.

Generally speaking, once a motor vehicle is sold to its first retail purchaser, its use and any modifications made to it become a matter of state interest. Thus, owners of used vehicles may personally make any modifications or alterations they want to their vehicles without regard to the FMVSSs, subject only to applicable state requirements.

There is, however, a limitation on modifications of used vehicles by commercial entities. 49 U.S.C. 30122 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 equipment in compliance with an FMVSS. Since the seats and their safety belts are devices or elements of design that were installed in your van in compliance with applicable FMVSSs (particularly the five standards listed above), a business listed in section 30122 cannot modify the vehicle in such a manner as to remove the seats and/or safety belts from compliance. Accordingly, the vehicle modifier should ensure that the swivel seats and any seat belts it installs are installed in accordance with the requirements of the standards. You indicated that Great Lakes Communications wishes to maintain the safety of the original seats and seat belts. We commend that decision. NHTSA urges vehicle owners not to degrade the performance of the safety systems on their vehicles.

I hope this information is helpful. Should you have any further questions or need additional information, feel free to contact Walter Myers or Mary Versailles of my staff at (202) 366-2992.

Sincerely,

Philip R. Recht Chief Counsel

Enclosure Ref:207#208#209#210#302 d:11/14/94

ID: nht78-1.45

DATE: 03/10/78

FROM: AUTHOR UNAVAILABLE; J. J. Levin, Jr.; NHTSA

TO: Recreation Vehicle Industry Association

TITLE: FMVSS INTERPRETATION

TEXT:

MAR 10 1978

Mr. Edmund C. Burnett Recreation Vehicle Industry Association 5272 River Road, Suite 400 Washington, D.C. 20016

Dear Mr. Burnett:

This responds to your January 18, 1978, letter asking several questions about the applicability of Standard No. 302, Flammability of Interior Materials, to several vehicle components that you submitted.

First you ask whether padded material used for the top portion of a dashboard would be considered to fall within the ambit of the standard. As you stated in your letter, the National Highway Traffic Safety Administration has determined that a dashboard is considered a front panel and is included within the components subject to the standard. Therefore, since the padding you propose to use on the top of the dashboard constitutes part of the dashboard it is required to comply with all of the requirements of the standard.

In your second question you ask whether the same material mentioned in question 1 would be required to comply withe the standard when used as a seat cushion. Paragraph S4.1, which lists the components covered by the standard, specifically includes seat cushions. Therefore, any material used for this purpose is required to comply with the standard.

In regard to both of the above questions, you ask whether a dashboard or seat cushion consisting of vinyl stitched at varying intervals to padding would be subject to two tests - one for the vinyl and one for the padding. Paragraph S4.2.1 states that: "any material that does not adhere to other material(s) at every point of contact shall meet the requirements of S5.3 when tested separately." When the vinyl is stitched to the padding in the manner outlined in your letter, the vinyl does not adhere to the material at every point of contact. Accordingly, the materials must be tested separately.

Your questions 3 and 4 require no response since the materials to which you refer must be tested separately, not as composite materials.

In your question 5, you correctly state that the two top materials would be required to be tested separately. If as installed in the vehicle the third layer of material would fall within 1/2 inch of the occupant compartment, then it too would be tested in accordance with the requirements. It does not matter that this material would not be within 1/2 inch of the surface when the stitching is removed for testing of each component separately. In a related question you ask whether the stitching itself would be tested. Since the stitching is part of the seat cushion, it is subject to the requirements and since it does not adhere at every point of contact, it should be tested separately. From the standpoint of practicality, however, the stitching cannot be tested separately in the prescribed manner, and is usually simply tested as part of the material itself.

Finally you submitted a section of headlining material and question whether it would be required to comply with the requirements. This material falls within the list of components covered by the standard and, therefore, must comply with all of the requirements. The material that you submitted is composed of two layers joined at every point of contact and would be tested as a composite material.

Sincerely,

Joseph J. Levin, Jr. Chief Counsel

ID: nht76-4.7

DATE: 05/21/76

FROM: AUTHOR UNAVAILABLE; S. P. Wood NHTSA

TO: Department of the Army

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your April 13, 1976, request for written confirmation that the requirements of paragraph S5.2.2.2 of Standard No. 116, Motor Vehicle Brake Fluids, do not preclude the use of brake fluid dispensing devices which are used without attachment to the brake fluid container.

Paragraph S5.2.2.2 of Standard No. 116 specifies the information that packagers of brake fluids are required to place on the outside of the brake fluid container. Subsection (g) of this paragraph specifies four warnings that must be marked on the container. These labeling requirements apply only to the brake fluid container. The requirements do not apply to use of the brake fluid, and therefore do not create duties on the part of the user to abide by the warnings. The purpose of these requirements is only to ensure that purchasers are warned of potential safety hazards that can result from improper use and storage of the product.

Sincerely,

ATTACH.

DEPARTMENT OF THE ARMY

APRIL 13, 1976

OFFICE OF CHIEF COUNSEL -- National Highway Traffic Safety Administration

Gentlemen:

Reference is made to Title 49 - Transportation, Chapter V - National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT), Part 571 - Federal Motor Vehicle Safety Standards, Motor Vehicle Hydraulic Brake Fluids, Motor Vehicle Safety Standard No. 116.

This Headquarters has issued a Solicitation IFB DAAA09-76-B-6363 for a quantity of automotive hydraulic brake system filler-bleeders.

One of the potential competitors on this procurement (i.e., Bowes Seal Fast Corporation, (Bowes)) has brought into issue the Department of Transportation FMVSS No. 116 in relationship to the specification cited in this solicitation (Incl 1). Specifically, Bowes contends that the required item under Mil-F-19849C dated 14 May 1969, Type I, Class A, Size 1, violates the requirement of FMVSS No. 116, paragraphs S5.2.2.2., (g) 1, 2, 3, and 4.

Our engineering staff is of the opinion that the requirements of FMVSS No. 116 properly applies only to the producer, packager, wholesaler, retailer and user for storage purposes, but has no relationship to the dispensing device used to fill any vehicles hydraulic brake systems.

Contact has been made with Mr. Sid Williams and Mr. Fred Redler of your office and they have orally confirmed that our engineering staffs' view of this matter is correct. Written verification of this fact is requested so that a final reply can be made to Bowes. Your prompt attention to this request will be appreciated. It is also requested that you forward the latest Series 100 and 300 Standards.

Sincerely yours,

MARVIN L. (Illegible Word) -- Chief, Procurement Law Division

1 Incl As stated

BOWES SEAL FAST CORPORATION

March 24, 1976

General William E. Eicher -- U. S. Army (Illegible Word) Command

Dear Sir:

Subject: FILLER-BLEEDER, HYDRAULIC BRAKE SYSTEM, AUTOMOTIVE NSN 4910-00-273-3658 (Formerly FSN 4910-273-3658)

Inasmuch as our Company is a small business, and manufacturer of equipment in the above category, that category is of interest. We are also government contractors and sub-contractors. Following is a tabulation of contract awards from your Command of which we find record in Commerce Business Daily: Solicitation No. DAAF03-72-B-1405 DAAA09-74-B-6988 Applicable Document Cited T&E PD-58B T&E PD-82 1969 June 20 1973 September 05 Contract Award DAAF03-73-C-1029-0004 DAAA09-74-D-6033-0001 24 April 1973 8 May 1974 Award Quantity 1,556 Units 1,016 Units Award Amount $ 69,302 $ 70,632

There has been some previous correspondence from this office to your Command on the above procurement. While our correspondence took exception to the procurement, it did not include a protest of contract award. A reply to one of our letters discussed procurement under T&E PD-58B and T&E PD-82, stating "based on higher work load priorities during this time frame, a military specification was not prepared."

Now, we have received current IFB DAAA09-76-B-6363 applying to NSN 4910-00-273-3568 in quantity of 1,597 units with bid opening date of 9 April 1976. The applicable document cited in this solicitation is MIL-F-19849C dated 14 May 1969.

Upon reading MIL-F-19849C, we do not find equipment described to be basically different from that of T&E PD-58B and T&E PD-82, at least as far as IFB DAAA09-76-B-6363 is concerned. The current IFB stipulates Type I, Class A, Size 1 unit with tank capacity of 3 gallons +/- 1/2 gallon. This refers to a storage tank with diaphragm into which hydraulic brake fluid would be transferred from the original container for shop use as needed.

2 Attention is invited to Department of Transportation FMVSS No. 116 published in Federal Register, Volume 36, No. 232, December 2, 1971. FMVSS 116 serves to establish standards for hydraulic brake fluids and their use.

Attached are specimens of labeling, including directions for use, which have been on all Bowes brake fluid containers since 1972. That this label includes the name of our Company is not significant, because all brake fluid marketers now use identical directions. This is as required in FMVSS 116, Section S 5.2.2.2., sub-paragraph (g), outlining the information to be clearly and indelibly marked on each brake fluid container. As will be noticed under the directions of panel 2, the label clearly states brake fluid is to be stored only in its original container, and that a container is not to be refilled.

In our reading of MIL-F-19849C, it appears to be a revision of earlier Specification MIL-F-198488, dated 4 September 1963. It is evident, then, that the specification has not been revised since 14 May 1969, hence is in conflict with FMVSS No. 116, effective 1 March, 1972.

While FMVSS 116 does not specify any particular type of dispenser for the use of hydraulic brake fluid, it does clearly state "store brake fluid only in its original container". It also specifies "do not refill container." This would exclude transferring brake fluid from its original drum or can to a refillable-reusable tank of 3 gallon capacity.

Attached is a catalog-instruction sheet on the Mack Brake Fluid Bleeder-Filler which is manufactured by our Company. This unit passed feasibility testing at your Command in 1971, following which it was approved and a contract issued from General Services Administration under date of February 15, 1972. It does meet the requirement of FMVSS No. 116 in dispensing brake fluid directly from an original closed container. Since pressure for operation of the unit is provided by a spring-loaded cylinder extending into the original brake fluid container, no air line, pressure gauge or water trap is required. Incidentally, we do not see the latter mentioned in MIL-F-19849C, although we question that a diaphragm would always be impervious to moisture in compressed air.

While the Mack Brake Fluid Bleeder-Filler is a product of distinctive quality, safety and convenience, it is not a proprietary item. That it does serve satisfactorily in its intended use is evidenced by repeat orders from original GSA contract buyers. The unit has also been the subject of a "New Equipment Review" letter from your Command.

As will be noted in the tabulation of contracts shown elsewhere in this letter, the cost of procurement increased over 50% from the 1973 award to the 1974 award, or from $ 44.54 to $ 69.52 per unit. In 1976, the Mack Brake Fluid Bleeder-Filler is available to dealers and fleet users from Bowes distributors throughout the United States at $ 18.25. Construction of the unit is of a nature not requiring special packaging. Standard commercial packaging is one unit per corrugated box 6 1/4" x 3 3/4" x 10 1/8", 10 units per master corrugated shipping carton 22" x 10 1/2" x 13 3/4". Shipping in this packaging has not involved any problem of damage in shipment or storage.

While our Company would be pleased to bid the Mack Brake Fluid Bleeder-Filler under IFB DAAA09-76-B-6363, there is no reason to do so as such offer would be considered non-responsive to the solicitation.

In our opinion, MIL-F-19849C has been obsolete for some time, no longer an appropriate criterion for procurement. Therefore, we respectfully ask that Solicitation No. DAAA09-76-B-6363 be canceled pending a thorough review of its subject, and development of an up-to-date revision of MIL-F-19849C.

Cordially yours,

GEORGE E. TALMAGE, Secretary

Copy to: Commander, U. S. Army Tank-Automotive Command, AMSTA-MST National Automotive Center, GSA-FYS; DRXMD-TE, Mr. Van Acker

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