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DOT Chemical, Denial of Petition for Decision of Inconsequential Noncompliance

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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 Start Printed Page 41255of 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 °F and −58 °F, sedimentation when tested as referenced in S5.1.9 at −40 °F, and crystallization when tested as referenced in S5.1.10 at −40 °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 °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.

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

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Issued on: July 8, 2005.

Ronald L. Medford,

Senior Associate Administrator for Vehicle Safety.

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[FR Doc. 05-14033 Filed 7-15-05; 8:45 am]