[Federal Register: November 1, 2005 (Volume 70, Number 210)]
[Notices]
[Page 65969-65970]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01no05-137]
-----------------------------------------------------------------------
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