[Federal Register Volume 70, Number 136 (Monday, July 18, 2005)]
[Notices]
[Pages 41254-41255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14033]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2005-20858; Notice 2]


DOT Chemical, Denial of Petition for Decision of Inconsequential 
Noncompliance

    DOT Chemical has determined that certain containers of brake fluid 
which it manufactured in June 2004 do not comply with S5.1.7, S5.1.9, 
and S5.1.10

[[Page 41255]]

of 49 CFR 571.116, Federal Motor Vehicle Safety Standard (FMVSS) No. 
116, ``Motor vehicle brake fluids.'' Pursuant to 49 U.S.C. 30118(d) and 
30120(h), DOT Chemical has petitioned for a determination that this 
noncompliance is inconsequential to motor vehicle safety and has filed 
an appropriate report pursuant to 49 CFR part 573, ``Defect and 
Noncompliance Reports.'' Notice of receipt of the petition was 
published, with a 30 day comment period, on April 14, 2005 in the 
Federal Register (70 FR 19837). NHTSA received one comment.
    Affected are a total of approximately 50,000 containers of DOT 4 
brake fluid, lot numbers KMF02 and KMF03, manufactured in June 2004. 
FMVSS No. 116 requires that, when tested as referenced in S5.1.7 
``Fluidity and appearance at low temperature,'' S5.1.9 ``Water 
tolerance,'' and S5.1.10 ``Compatibility,'' the brake fluid shall show 
no crystallization or sedimentation. The subject brake fluid shows 
crystallization and sedimentation when tested as referenced in S5.1.7 
at -40 [deg]F and -58 [deg]F, sedimentation when tested as referenced 
in S5.1.9 at -40 [deg]F, and crystallization when tested as referenced 
in S5.1.10 at -40 [deg]F.
    DOT Chemical believes that the noncompliance is inconsequential to 
motor vehicle safety and that no corrective action is warranted. DOT 
Chemical states that there are fiber-like crystals in the fluid, which 
are borate salts, and

are a natural part (no contamination) of DOT 4 brake fluid 
production (just fallen out of solution in some packaged goods) and 
have not demonstrated any flow restrictions even at extended periods 
of low temperatures at -40 [deg]F. Furthermore, when the fluid is 
subjected to temperatures in a normal braking system, the crystals 
go back into solution in some cases not to reappear at all at 
ambient temperatures.

    NHTSA received one public comment from a private individual. The 
issue to be considered in determining whether to grant this petition is 
the effect of the noncompliance on motor vehicle safety. The public 
comment does not address this issue, and therefore has no bearing on 
NHTSA's determination.
    NHTSA has reviewed the petition and has determined that the 
noncompliance is not inconsequential to motor vehicle safety.
    NHTSA notes that we granted petitions for determinations of 
inconsequential noncompliance of FMVSS No. 116 to Dow Corning 
Corporation (59 FR 52582, October 18, 1994) and to First Brands 
Corporation (59 FR 62776, December 6, 1994). In the case of Dow, the 
FMVSS No. 116 noncompliance arose from a ``slush-like crystallization'' 
that dispersed ``under slight agitation or warming.'' NHTSA accepted 
Dow's argument that its ``slush-like crystallization'' does not consist 
of ``crystals that are either water-based ice, abrasive, or have the 
potential to clog brake system components.'' NHTSA concurred with Dow's 
conclusion that ``the crystallization that occurred ought not to have 
an adverse effect upon braking.'' In the case of First Brands, the 
FMVSS No. 116 noncompliance arose from a ``soft non-abrasive gel'' that 
also dispersed under slight agitation or warming.
    NHTSA determines that facts leading to the grants of the 
inconsequential noncompliance petitions of Dow and First Brands are not 
analogous to the facts in DOT Chemical's situation. In contrast, DOT 
Chemical's noncompliance results from ``fiber-like crystals'' made of 
borate salts. These borate salt crystals did not disperse under slight 
agitation or warming, but had to be physically removed by filtration. 
DOT Chemical asserts that ``[f]iltration, using Whatman 40 
filter paper (25-30 micron particle size) removed all crystals. The 
crystals are approximately 30-50 microns in width and 3-5 mm in 
length.'' DOT Chemical does not explain how it can assure that crystals 
smaller than 25 microns in width did not remain in the brake fluid.
    Even assuming that all larger-sized crystals were removed from the 
fluid, NHTSA is concerned that crystals that are of a size smaller than 
25 microns by 3-5 mm would remain in the brake fluid. The thread-like 
nature of this type of crystallization has the potential to clog brake 
system components, particularly in severe cold operation conditions. 
Impurities such as these in the brake system may cause the system to 
fail, i.e., to lose the ability to stop the vehicle over time due to 
the accumulation of compressible material in the brake lines. These 
impurities may also result in the failure of individual brake system 
components due to the corrosive nature of the contaminants themselves.
    In consideration of the foregoing, NHTSA has decided that the 
petitioner has not met its burden of persuasion that the noncompliance 
described is inconsequential to motor vehicle safety. Accordingly, DOT 
Chemical's petition is hereby denied.

    Authority: (49 U.S.C. 30118, 30120; delegations of authority at 
CFR 1.50 and 501.8)

    Issued on: July 8, 2005.
Ronald L. Medford,
Senior Associate Administrator for Vehicle Safety.
[FR Doc. 05-14033 Filed 7-15-05; 8:45 am]
BILLING CODE 4910-59-P