[Federal Register Volume 70, Number 210 (Tuesday, November 1, 2005)]
[Notices]
[Pages 65969-65970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21723]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2005-20858; Notice 4]


DOT Chemical, Denial of Appeal of Decision on Inconsequential 
Noncompliance

    DOT Chemical has appealed a decision by the National Highway 
Traffic Safety Administration (NHTSA) 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. DOT Chemical had applied to be 
exempted from the notification and remedy requirements of 49 U.S.C. 
Chapter 301, ``Motor Vehicle Safety.''
    Notice of receipt of the original 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. DOT Chemical appealed, and notice of the appeal was 
published in the Federal Register on September 2, 2005 (70 FR 52469). 
NHTSA received no public comments.
    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 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

[[Page 65970]]

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.
    In its denial of DOT Chemical's petition NHTSA stated that 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 of NHTSA's denial, DOT Chemical stated 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 provided 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 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.

    After considering the statements presented by DOT chemical in 
its appeal, NHTSA has decided to deny the appeal. As NHTSA stated in 
denying DOT Chemical's original petition, DOT Chemical's 
noncompliance results from ``fiber-like crystals'' made of borate 
salts which did not disperse under slight agitation or warming. DOT 
Chemical's statement in its appeal that, ``when the fluid is 
subjected to temperatures in a normal braking system, the crystals 
go back into solution in some cases'' (emphasis added), 
distinguishes it from petitions NHTSA has granted, where the 
crystallization consistently dispersed. DOT Chemical in its appeal 
provided no data indicating that the crystals always go back into 
solution at ambient temperature, including at a test laboratory 
ambient temperature of 75[deg] F (24[deg] C). Further, DOT Chemical 
provided no data to validate its assertion that the borate salts 
will not cause any safety problems such as the potential to clog 
brake system components.
    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 appeal of NHTSA's decision on 
inconsequential noncompliance is hereby denied.


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

    Issued on: October 26, 2005.
Ronald L. Medford,
Senior Associate Administrator for Vehicle Safety.
[FR Doc. 05-21723 Filed 10-31-05; 8:45 am]
BILLING CODE 4910-59-P