Interpretation ID: 86-1.5

TYPE: INTERPRETATION-NHTSA

DATE: 01/06/86

FROM: AUTHOR UNAVAILABLE; Erika Z. Jones; NHTSA

TO: Lloyd Bentsen -- U.S. Senate

TITLE: FMVSS INTERPRETATION

TEXT:

Dear Senator Bentsen:

Thank You for Your recent letters to Administrator Steed on behalf of your constituent Mr. Joe M. Rutland. I apologize for the delay in our response. Mr. Rutland asked why this agency requires safety warnings be lithographically marked on brake fluid containers. He believes that this requirement causes undue hardship on small businesses that package brake fluid. I appreciate this opportunity to respond to Mr. Rutland's concerns and to clarify our requirements for brake fluid container labeling.

Some background information on NHTSA's authority to regulate in this area might be helpful. The National Traffic and Motor Vehicle Safety Act of 1966 (the "Vehicle Safety Act") authorizes us to promulgate motor vehicle safety standards for new motor vehicles and items of motor vehicle equipment, including brake fluid. Federal Motor Vehicle Safety Standard No. 116, Motor Vehicle Brake Fluid (49 CFR 571.116), has been in effect as a motor vehicle safety standard since the passage of the Vehicle Safety Act. In 1971, Standard No. 116 was amended to establish requirements for the labeling of brake fluid containers. The rule required certain safety information to be clearly and indelibly marked on each brake fluid container.

Brake fluid containers must be labeled with specific safety warnings, in addition to other general information. The warnings serve as a safeguard against failures in hydraulic braking systems that might result from the use of improper or contaminated fluids. The warnings also help to prevent improper storage of the brake fluid which could contaminate the fluid or cause it to absorb moisture. Avoiding the absorption of moisture is extremely important since moisture in a brake system degrades braking performance and safety by lowering the brake fluid's boiling point, and increases possibilities of vapor lock and brake system component corrosion.

Thus, packagers of brake fluid have been required since 1971 to furnish the safety information clearly and indelibly on each brake fluid container. In response to a request for an interpretation of Standard No. 116 in 1984, NHTSA ruled that the use of labels affixed to brake fluid containers would not comply with the labeling requirements of the standard. However, Standard No. 116 does not mandate that lithography be used to mark the containers, as Mr. Rutland seems to believe. Any technology, whether lithography or otherwise, may be used if the resultant marking on a brake fluid container is clear and indelible and directly on the container itself.

The agency has recently been made aware of the concern that the 1984 interpretation of Standard No. 116's labeling requirements may be causing undue hardship for packagers of brake fluid. In response to those concerns, we have been examining Standard No. 116 to assess its current labeling requirements.

I hope this information is helpful. Please contact my office if we can be of further assistance.

Sincerely,

Erika Z. Jones Chief Counsel

Ms. Dianne Steed, Acting Administrator National Highway Traffic Safety Administration U.S. Department of Transportation 400 7th Street, S.W. Washington, D.C. 20590

Dear Ms. Steed:

I recently received the enclosed constituent inquiry, and I would very much appreciate your providing me with any pertinent information you might have regarding the matter.

Your kind assistance is greatly appreciated.

Sincerely,

Lloyd Bentsen

Enclosure

PLEASE REPLY TO:

1100 Commerce, Room 7C14, Dallas, Texas 75242

October 4, 1985

TO: Automotive Chemicals Division Scientific Committee

FROM: Stephen S. Kellner Vice President Legal Affairs

RE: Notice of Meetings

Previously, we notified your office that two meetings are scheduled concerning ethylene glycol antifreeze and brake fluid. The purpose of this correspondence is to reiterate and confirm the substance of our phone conversation.

Both meetings will be held on October 11, 1985 at CSMA headquarters in Washington, D.C. The morning meeting will commence at 10:00 a.m. and will adjourn at noon. The subject matter of this meeting involves Union Carbide's intentions to revise its ethylene glycol antifreeze labels to reflect what it terms as new data which shows ethylene glycol to be an animal teratogen when ingested orally. This meeting is being organized by CSMA at the request of Union Carbide and is meant to serve as a forum for the exchange of information on the matter.

The afternoon meeting is scheduled to start at 1:30 p.m. and is expected to end at approximately 3:30 p.m. CSMA is calling this meeting to bring to the membership's attention recent advisory opinions issued by the National Highway Traffic Safety Administration (NHTSA) (an arm of the U.S. Department of Transportation) advising industry that labels permanently glued to brake fluid containers do not meet the "clearly and indelibly marked" requirement of 49 CFR S571.116, SS5.2.2.2.

It is NHTSA'S opinion that relevent information must be directly marked on the brake fluid container and not merely on a label, whether paper or of some other material, that is affixed to the container. Obviously, such an interpretation will cause great economic hardship to those companies which package brake fluid under various private labels and, therefore, depend on the use of paper or other labels. At this meeting, we need to address the issue of brake fluid labeling and NHTSA's advisory opinions. In addition, CSMA has tentatively arranged a meeting on October 18, 1985 with NHTSA's legal and technical staff to share our concerns with their interpretation of the brake fluid labeling regulation.

October 29, 1985

Senator Lloyd Bentson 703 Hart Building Washington, D.C. 20510

Dear Lloyd,

Since we consider you a friend of the small business man, I'm enclosing a legal opinion from an attorney of the CSMA in reference t labeling of brake fluid containers. Their interpretation of this law will require that brake fluid containers to be lithographed will have to be purchased in large quantities which cause undue hardship as well as cost on the small business man.

I would like to suggest that your office contact the NHTSA and find out why brake fluid is being singled out for this interpretation, while apparently no such interpretation exists for insecticide, which I would think would be more dangerous than brake fluid.

Your useful help will be most appreciated.

Sincerely,

Joe M. Rutland

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