[Federal Register Volume 70, Number 170 (Friday, September 2, 2005)]
[Notices]
[Pages 52469-52470]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17479]


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

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2005-20858; Notice 3]


DOT Chemical, Notice of Appeal of Denial of Petition for Decision 
of Inconsequential Noncompliance

    DOT Chemical has appealed a decision by the National Highway 
Traffic Safety Administration that denied its petition for a 
determination that its noncompliance with Federal Motor Vehicle Safety 
Standard (FMVSS) No. 116, ``Motor vehicle brake fluids,'' is 
inconsequential to motor vehicle safety.
    Notice of receipt of the petition was published on April 14, 2005, 
in the Federal Register (70 FR 19837). On July 18, 2005, NHTSA 
published a notice in the Federal Register denying DOT Chemical's 
petition (70 FR 41254), stating that the petitioner had not met its 
burden of persuasion that the noncompliance is inconsequential to motor 
vehicle safety.
    This notice of receipt of DOT Chemical's appeal is published in 
accordance with NHTSA's regulations (49 CFR 556.7 and 556.8) and does 
not represent any agency decision or other exercise of judgment 
concerning the merits of the appeal.
    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 asserted that the noncompliance is inconsequential to 
motor vehicle safety and that no corrective action is warranted. DOT 
Chemical stated 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 minus 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 reviewed the petition and determined that the noncompliance 
is not inconsequential to motor vehicle safety. In its denial, NHTSA 
noted that it 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 determined 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 asserted 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 did not explain how it can assure that crystals 
smaller than 25 microns in width did not remain in the brake fluid.
    In its denial of DOT Chemical's petition, NHTSA stated that--even 
assuming that all larger-sized crystals were removed from the fluid--
the agency 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 decided that the 
petitioner did not meet its burden of persuasion that the noncompliance 
it described is inconsequential to motor vehicle safety. Accordingly, 
its petition was denied.
    In its appeal from NHTSA's denial, DOT Chemical states that ``[t]he 
words and phrases used in the [original] petition were not identical to 
the descriptions in the previous cases. DOT Chemical wishes to clear up 
any misunderstandings from the original petition and reword to match 
the precedent cases.''
    DOT Chemical provides the following statements in its appeal:

--Our choice of the word ``crystals'' can also be described as 
``slush-like crystallization'' (as in the granted petition in 1994) 
or a ``soft non-abrasive gel,'' a look at the sample is worth a 
thousand words or even rubbing the material between the fingers.
--Our ``crystals'' dispersed and/or went completely into solution 
``under slight agitation or warming'' (as in the granted petition in 
1994).
--Slight Agitation: In DOT Chemical's petition the phrase ``DOT 
Chemical tested the fluid, agitated the material before testing to 
insure that the crystals were part of each test'' we believe implied 
that the

[[Page 52470]]

material went into solution when agitated. We simply needed to make 
sure that the test material was not just decanted brake fluid 
without ``crystals.'' When agitated, ``crystals'' or ``slush-like 
crystallization'' was not seen.
--Warming: In DOT Chemical's petition the phrase ``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'' we believe implied the warming scenario 
mentioned in the granted petition cases.
--In the case of the granted petitions stating 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' '' we believe implies the same thing as our 
statements ``There is no contamination in this fluid'' and ``the 
crystals are a natural part (no contamination.''
--In the case of the granted petitions stating that ``the 
crystallization that occurred ought not to have an adverse effect 
upon braking'' we believe is carried to an additional degree by DOT 
Chemical's testing of the material at -40 [deg]F through the 
viscometer (with dimensions and drawing provided) and stating that 
the diameter is much smaller than brake system lines. Specific 
phrases in DOT Chemical's appeal are ``The crystals presented no 
problems with obstruction,'' ``results again showed no 
obstruction,'' and ``have not demonstrated any flow restrictions 
even at extended periods of low temperatures at minus 40 [deg]F.'' 
Much time was spent on the flow and low temperatures because all 
tests passed except partial test failures concerning sedimentation 
and low temperatures.

    Interested persons are invited to submit written data, views, and 
arguments on the petition appeal described above. Comments must refer 
to the docket and notice number cited at the beginning of this notice 
and be submitted by any of the following methods. Mail: Docket 
Management Facility, U.S. Department of Transportation, Nassif 
Building, Room PL-401, 400 Seventh Street, SW., Washington, DC, 20590-
0001. Hand Delivery: Room PL-401 on the plaza level of the Nassif 
Building, 400 Seventh Street, SW., Washington, DC. It is requested, but 
not required, that two copies of the comments be provided. The Docket 
Section is open on weekdays from 10 a.m. to 5 p.m. except Federal 
Holidays. Comments may be submitted electronically by logging onto the 
Docket Management System Web site at http://dms.dot.gov. Click on 
``Help'' to obtain instructions for filing the document electronically. 
Comments may be faxed to 1-202-493-2251, or may be submitted to the 
Federal eRulemaking Portal: go to http://www.regulations.gov. Follow 
the online instructions for submitting comments.
    The petition appeal, supporting materials, and all comments 
received before the close of business on the closing date indicated 
below will be filed and will be considered. All comments and supporting 
materials received after the closing date will also be filed and will 
be considered to the extent possible. When the petition appeal is 
granted or denied, notice of the decision will be published in the 
Federal Register pursuant to the authority indicated below.
    Comment closing date: October 3, 2005.

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

    Issued on: August 29, 2005.
Ronald L. Medford,
Senior Associate Administrator for Vehicle Safety.
[FR Doc. 05-17479 Filed 9-1-05; 8:45 am]
BILLING CODE 4910-59-P