[Federal Register Volume 69, Number 223 (Friday, November 19, 2004)]
[Rules and Regulations]
[Pages 67654-67660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25446]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA 2004-19625]
RIN 2127-AH96


Federal Motor Vehicle Safety Standards--Motor Vehicle Brake 
Fluids

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation.

ACTION: Final rule.

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SUMMARY: This document amends our standard on brake fluids by removing 
the evaporation test and modifying the corrosion test. We are removing 
the evaporation test because we have concluded that it is unnecessary, 
given changes in brake system designs and in brake fluid formulations 
since the test was developed. We are modifying the corrosion test to 
improve test repeatability and reproducibility.

DATES: Effective Date: The effective date of this final rule is: 
November 21, 2005, except for the removal of S5.1.8, S6.8, S6.8.1, 
S6.8.2, S6.8.3, and S6.8.4 from Sec.  571.116, which will be effective 
January 18, 2005. Petitions for reconsideration: Petitions for 
reconsideration of this final rule must be received not later than: 
January 3, 2005.

ADDRESSES: Petitions for reconsideration of this final rule must refer 
to the docket and notice number set forth above and be submitted to the 
Administrator, National Highway Traffic Safety Administration, 400 
Seventh Street, SW., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:
    For legal issues: Ms. Dorothy Nakama, Office of the Chief Counsel, 
National Highway Traffic Safety Administration, 400 Seventh Street, 
SW., Washington, DC 20590 (202-366-2992). Ms. Nakama's fax number is: 
(202) 366-3820.
    For other issues: Mr. Sam Daniel, Office of Crash Avoidance 
Standards, National Highway Traffic Safety Administration, 400 Seventh 
Street, SW., Washington, DC 20590 (202-366-4921). Mr. Daniel's fax 
number is: (202) 366-7002.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Proposed Rule
    A. Evaporation Test
    B. Corrosion Test
II. Comments on the Proposed Rule and NHTSA's Decisions
    A. Comments on Evaporation Test and NHTSA's Decision
    B. Comments on Corrosion Test and NHTSA's Decision
III. Statutory Bases for the Final Rule
IV. Effective Dates
V. Rulemaking Analyses and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act
    C. National Environmental Policy Act
    D. Executive Order 13132 (Federalism)
    E. Unfunded Mandates Act
    F. Executive Order 12778 (Civil Justice Reform)
    G. Paperwork Reduction Act
    H. Regulation Identifier Number (RIN)
    I. Plain Language
    J. Executive Order 13045
    K. National Technology Transfer and Advancement Act
Regulatory Text of the Final Rule

I. Proposed Rule

    Federal Motor Vehicle Safety Standard (FMVSS) No. 116, Motor 
Vehicle Brake Fluids, specifies requirements for fluids for use in 
hydraulic brake systems of motor vehicles, containers for these fluids, 
and labeling of the containers. The purpose of the standard is to 
reduce failures in the hydraulic braking systems of motor vehicles that 
may occur because of the manufacture or use of improper or contaminated 
fluid.
    On January 16, 2001, we published in the Federal Register (66 FR 
3527) \1\ a notice of proposed rulemaking (NPRM) to make technical 
modifications in two of the standard's tests, the evaporation test and 
the corrosion test. We believed the proposed modifications would 
improve repeatability and reproducibility \2\ of the tests, and thus 
improve the enforceability of the standard. We also requested comments 
concerning the retention of the evaporation test.
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    \1\ Docket No. NHTSA 00-8633.
    \2\ In order for a test to have good repeatability, there must 
not be undue variability in results when the same test is replicated 
at the same site. In order for a test to have good reproducibility, 
there must not be undue variability in results when the same test is 
replicated at different sites.
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A. Evaporation Test

    FMVSS No. 116 specifies various performance requirements relating 
to evaporation that must be met when brake fluid is tested according to 
a specified procedure that involves heating the brake fluid in an oven 
for an extended period of time. Among other things, the loss by 
evaporation must not exceed 80 percent by weight. See S5.1.8 and S6.8 
of the standard.
    In the NPRM, we stated that for a number of years, we have been 
concerned that the evaporation test may allow too much variability in 
test results. Because of this, we sponsored a study titled 
``Evaporation Test Variability Study,'' which was published in May 
1993. The study sought to identify and evaluate parameters of the brake 
fluid evaporation test procedure of FMVSS No. 116 that influence the 
high variability of results between laboratories. It also sought to 
develop procedural improvements to increase the precision and 
reproducibility of brake fluid evaporation measurements. This included 
validating procedural modifications through conducting an 
interlaboratory round robin program using four designated brake fluids.
    The study identified four means by which test result variability 
could be reduced: (1) Using a rotating shelf in the oven with a 6 rpm 
sample rotation, (2) specifying the location of the shelf supporting 
the sample within the oven, (3) controlling the oven temperature 
monitoring point, and (4) using oven calibration fluid for purposes of 
oven standardization. A copy of the study is available in the docket at 
NHTSA-2001-8633-2.
    After we published the study, the Society of Automotive Engineers 
(SAE) committee on brake fluids initiated work to consider revising its 
evaporation test procedure to address these points. The SAE evaporation 
test procedure is set forth as part of Motor Vehicle Brake Fluid--SAE 
J1703 JAN95. The SAE committee developed a draft procedure that uses a 
rotating shelf oven, defines shelf placement, and includes temperature 
monitoring. The committee did not reach agreement on an oven 
calibration fluid because of concerns about lot variability.

[[Page 67655]]

    More recently, however, the SAE committee voted to eliminate the 
evaporation test from its standard. Members of the committee believed 
that the requirement is outdated. The test was developed at a time when 
brake fluids did not have as good resistance to evaporation as today's 
brake fluids, and vehicle braking systems were not sealed. Members of 
the committee also believed that the evaporation test is redundant with 
the boiling point test, which evaluates similar brake fluid properties. 
The test was first deleted from the 2002 edition of SAE J1703.
    Particularly given that the evaporation test included in FMVSS No. 
116 was originally developed by SAE, we addressed in the NPRM the issue 
of whether the test should be retained in our standard. In the NPRM, we 
tentatively concluded that the evaporation test should be retained in 
FMVSS No. 116, noting that even though today's brake fluids may well 
have better resistance to evaporation than those in use when the test 
was originally developed, deletion of the test from FMVSS No. 116 could 
permit the introduction of inferior brake fluids into the United States 
market. We also noted that even if current brake fluid manufacturers 
would be unlikely to introduce such products, such introduction could 
come from new market entrants. For these reasons, we tentatively 
decided to retain the evaporation test in Standard No. 116, but 
requested comments on this issue.
    In the NPRM, we stated that assuming that the evaporation test was 
retained in FMVSS No. 116, we believed it was appropriate to improve 
the repeatability and reproducibility of the test. We stated our belief 
that while there are unresolved technical issues concerning oven 
calibration fluid, the repeatability and reproducibility of the 
evaporation test can be improved by adopting the other means for 
reducing test result variability that were identified by the NHTSA-
sponsored report and included in the SAE committee draft procedure. 
Accordingly, in the NPRM, we proposed to amend the test procedure to 
specify use of a rotating shelf oven, define shelf placement, and 
specify temperature monitoring.

B. Corrosion Test

    FMVSS No. 116's corrosion test involves placing six metal strips 
(steel, tinned iron, cast iron, aluminum, brass and copper) in a 
standard brake wheel cylinder cup in a test jar, immersing the entire 
assembly in the brake fluid being tested, and then heating the fluid 
for an extended period of time. The metal strips and wheel cylinder cup 
represent the materials that comprise brake system components that are 
in contact with brake fluid (master cylinders, brake lines, caliper 
pistons, wheel cylinders, etc.).
    A variety of performance requirements must be met at the end of the 
corrosion test procedure. Among other things, the metal strips are 
examined for weight change, which must not exceed specified 
percentages. See S5.1.6 and S6.6 of the standard.
    In the NPRM, we stated that while we do not have as much 
information concerning variability of the corrosion test as we do for 
the evaporation test, we identified a change in the specification 
concerning how the metal strips are prepared prior to testing that we 
believe would improve repeatability and reproducibility. The standard 
currently specifies that each of the strips, other than the tinned iron 
strips, is to be abraded with wetted silicon carbide paper grit No. 
320A until all surface scratches, cuts and pits are removed, and then 
polished with grade 00 steel wool.\3\ In the NPRM, we stated our belief 
that less variability would result if the strips were further abraded 
with wetted silicon carbide paper grit No. 1200, instead of being 
polished with grade 00 steel wool, and if a visual acuity requirement 
for evaluating the presence of surface scratches, cuts and pits were 
specified.
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    \3\ Tinned iron strips are not abraded or polished during 
preparation for corrosion testing because the tin coating is very 
thin and the test strips are highly polished to begin with.
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    We stated that if these changes were made, the repeatability and 
the reproducibility of the Corrosion test might be improved, since the 
steel wool might produce slight surface irregularities due to 
interaction with dissimilar metals that the No. 1200 silicon carbide 
paper would not. The visual acuity requirement would ensure removal of 
all surface scratches, cuts and pits that are visible to an observer 
having corrected visual acuity of 20/40 (Snellen ratio) at a distance 
of 300 mm (11.8 inches).

II. Comments on the Proposed Rule and NHTSA's Decisions

    In response to the NPRM, we received comments from: ABIC Testing 
Laboratories, Inc. ABIC); Case Consulting Laboratories, Inc. (Case); 
Castrol International (Castrol); Clariant GmbH (Clariant); Continental 
Teves AG & Co.oHG (Continental); DaimlerChrysler Corporation 
(DaimlerChrysler); Dr. Jos Morsink (a member of the SAE Motor Vehicle 
Brake Fluids Standards Committee) of Shell Chemicals (Shell); Society 
of Automotive Engineers of Japan (JSAE); Toyota Motor North America, 
Inc. (Toyota); and from Tammy T. Shannon, Ph.D. and Gregory A. 
Carpenter (Brake Fluid Technologists and Members of the SAE Motor 
Vehicle Brake Fluids Standards Committee) of Union Carbide (Union 
Carbide). We also received a February 14, 2003 submission from members 
of the SAE Brake Fluids Committee and other brake fluid experts.

A. Comments on Evaporation Test and NHTSA's Decision

    Several commenters on the NPRM argued that the evaporation test 
should be removed from FMVSS No. 116. Continental stated that it agrees 
with the decision of ``the SAE Committee to cancel the evaporation 
test.'' DaimlerChrysler recommended that the evaporation test be 
removed, stating ``the test is simply obsolete, given the vastly 
improved brake fluids and sealed braking systems of today.'' 
DaimlerChrysler stated that the boiling point test would ``reveal most 
of the fluid property weaknesses targeted by the evaporation test,'' 
providing the agency with ``reasonable assurance that substantially 
inferior brake fluids would not be introduced to the U.S. market.''
    Castrol provided several reasons why it believes the evaporation 
test should be removed. Castrol stated that since brake systems now 
tend to be sealed, evaporation is no longer an issue as it was in the 
past. Castrol stated further that although in some countries, there are 
brake fluid products (based on fluids such as water and diacetone 
alcohol) that would not meet the evaporation test requirements, it 
believes these fluids would not meet other FMVSS requirements. Castrol 
concluded that if these ``new marketers were to enter the U.S. market, 
they would not be able to claim FMVSS 116 standards with these inferior 
fluids.''
    Clariant and Shell provided similar explanations of why the SAE 
Brake Fluids Standards Committee voted to remove the evaporation test, 
stating ``it has not been just an ad hoc decision.'' Clariant and Shell 
stated that the Committee, after considering data from many support 
laboratories, concluded that the evaporation test was not reliable 
enough. Shell stated that although the repeatability improves by using 
a rotating oven, the reproducibility ``stays below an acceptable 
performance level.'' That company also stated that the evaporation test 
can be considered as outdated since it originates from a time that 
volatile alcohol was used as part of a brake fluid formulation. 
Clariant and

[[Page 67656]]

Shell expressed the view that concerns about evaporation test testing 
for potential vapor lock are addressed by the equilibrium reflux 
boiling point (ERBP) requirements.
    Union Carbide expressed the view that the evaporation test is 
``outdated,'' and that brake fluid evaporation leading to vapor lock is 
``not a danger in modern braking systems.'' Union Carbide expressed the 
view that even with the proposed changes to the evaporation test, the 
``results are unacceptable in repeatability and reproducibility.''
    In a submission to NHTSA dated February 14, 2003, a member of the 
SAE Brake Fluids Committee provided background information concerning 
why the committee decided to recommend deletion of the evaporation 
test. The document was a summation of inputs from various SAE Brake 
Fluids Committee members, knowledgeable brake/brake fluid experts, and 
general automotive/historical references.\4\ The document stated that 
the evaporation test ``is not a practical test, due to continuing lack 
of repeatability and reproducibility much less functional variability'' 
and the fact that today, brake systems are sealed to minimize brake 
fluid evaporation. The document stated that brake systems are also 
sealed to meet the requirements in FMVSS Nos. 105, Hydraulic and 
Electric Brake Systems, and No. 135, Passenger Car Brake Systems. FMVSS 
Nos. 105 (at S5.4.2) and 135 (at S5.4.2) require that brake fluid 
reservoirs contain sufficient fluid to operate brake systems normally 
when the friction components (pads and linings) are worn. FMVSS Nos. 
105 (at S7.18(c)) and 135 (at S7.17(b)) also require that the brake 
system show no signs of leakage during inspection after completion of 
testing. According to the document, these requirements ensure that the 
braking system is highly resistant to brake fluid evaporation. The 
agency believes that the requirements in FMVSS Nos. 105 (at S5.4.2) and 
135 (at S5.4.2) do not directly assure that brake fluid is highly 
resistant to evaporation because a sufficiently large master cylinder 
reservoir will provide adequate brake fluid to meet these requirements.
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    \4\ Brake TEC, ``Re: FMVSS No. 116-Evaporation Test'' Docket No. 
NHTSA-2000-8633-13.
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    The February 14, 2003 document also stated that in FMVSS No. 116, 
the stroking properties test (at S5.1.13 and S6.13), subjects brake 
fluid to conditions similar to those in the evaporation test. Also, the 
stroking properties test simulates brake fluid function in a vehicle 
brake system, which the evaporation test does not do. The stroking 
properties test requires that brake fluid be maintained at a higher 
temperature for a longer period of time than the evaporation test 
procedures (evaporation test at 100 degrees Celsius for 46 hours; the 
stroking properties test at 120 degrees Celsius for approximately 70 
hours). Therefore, in order to meet the stroking properties test, the 
brake fluid must be highly resistant to evaporation. It should be noted 
that under certain conditions, the evaporation test requires that brake 
fluid be heated continuously for 7 days. However, the stroking test 
could be used to evaluate brake fluid evaporation rate.
    The evaporation test at S5.1.8(b) specifies that the ``residue from 
the brake fluid after evaporation shall contain no precipitate that 
remains gritty or abrasive * * *'' The February 14, 2003 document also 
cited S5.1.6, Corrosion; S5.1.9, Water tolerance; and S5.1.10, 
Compatibility, as tests in FMVSS No. 116 that could be used, with minor 
modifications, to evaluate the ``grittiness'' of the brake fluid.
    Castrol and the February 14, 2003 document stated that paragraph 
S5.1.1. Equilibrium Reflux Boiling Point (ERBP) and paragraph S5.1.2, 
Wet ERBP, also assess the ability of the brake fluid to resist 
evaporation. The boiling point tests determine the boiling point 
temperature of new brake fluid (ERPB) and when water has been added, 3 
percent by weight (wet ERBP). The boiling point tests and the 
evaporation test evaluate similar brake fluid properties.
    Several other commenters to the NPRM, including ABIC, Case, Toyota, 
and JSAE, favored retaining the evaporation test, and suggested how the 
evaporation test could be made more objective, with the comments 
focusing on improving repeatability and reproducibility by providing 
more specifications for the oven. ABIC stated that the evaporation test 
``is the only test procedure, which gives an indication of the 
grittiness of the fluid tested.'' ABIC suggested that an ``open, bared 
type'' shelf be used to hold the brake fluid test samples in the oven 
used in the evaporation test. ABIC expressed the view that the ``open, 
bared type'' shelf would allow adequate heat and airflow to rise up 
from the bottom of the shelf. ABIC further stated that in some ovens 
used to test brake fluid samples, the shelves were ``almost a solid 
piece of metal,'' absorbing heat. ABIC stated that this build up of 
heat under the tested samples may be another reason for individual 
differences in evaporation loss between samples tested.
    Case cited the May 1993 NHTSA-sponsored report as supporting 
improvement in Evaporation test results. Case stated that the 
``rotating shelf modification and standardized positioning of 
temperature sensors will produce much better agreement within and 
between laboratories.''
    Toyota commented that the size of the oven and the area and shape 
of the oven's vent hole should be specified because without such 
detailed specifications, the test equipment may vary between 
laboratories used by NHTSA and the industry. JSAE commented that other 
factors such as ``oven capacity or vent area'' may affect the 
evaporation results. Neither commenter gave specifications for the 
ovens or the vent areas that it believes would result in a more 
repeatable and reproducible evaporation test.
    After careful consideration of the comments, we have decided to 
remove the evaporation test. As discussed earlier, in preparing the 
NPRM, we considered whether the test should be retained in FMVSS No. 
116, particularly in light of the decision by the SAE Brake Fluids 
Committee to remove the test from the SAE standard. We indicated in the 
NPRM that we were concerned that removal of the test could permit the 
introduction of inferior brake fluids into the United States market, 
even if current brake fluid manufacturers would be unlikely to 
introduce such products.
    On further consideration of this issue, however, we are persuaded 
that the evaporation test is unnecessary given changes in brake system 
designs and in brake fluid formulations since the test was developed, 
and that other tests in the standard will prevent the introduction of 
inferior brake fluids into the United States market. In particular, we 
note that the evaporation test dates back to a time when hydraulic 
brake systems were vented and when brake fluid contained alcohol or 
castor oil (substances with lower boiling point temperatures than 
present day brake fluid formulas). Present day brake fluid formulas do 
not contain alcohol or castor oil. Moreover, FMVSS No. 116 includes 
other tests, such as the boiling point test, the stroking test, the 
corrosion test, and the water tolerance test, which will prevent the 
introduction of inferior brake fluids into the United States market.
    We have also factored continuing problems related to repeatability 
and reproducibility into our decision. While it might be possible to 
address these problems by further research, we believe it would not be 
a good use of our resources to conduct such research given the evidence 
that there is no longer a safety need for this test in FMVSS No. 116.

[[Page 67657]]

B. Comments on Corrosion Test and NHTSA's Decision

    Commenters provided a variety of views on whether and on how the 
corrosion test should be changed. Two commenters, Case and Union 
Carbide, recommended that the proposed changes to the corrosion test be 
made final.
    Castrol, DaimlerChrysler, Clariant, and JSAE gave qualified support 
for the proposed changes to the corrosion test. Castrol suggested that 
the corrosion test be amended by eliminating the step of ``finishing'' 
the test strips following the preparation and cleaning of the surface 
with the 320A silicon carbide paper, in other words, to follow the 
procedure currently specified in SAE J1703. In general, Castrol 
recommended compatible national and international standards.
    DaimlerChrysler stated that it does not have the ``technical 
experience or knowledge that would allow for fair judgment of the 
proposed test strip preparation method.'' It noted that NHTSA should 
``take care that the quantitative results of corrosion testing are not 
significantly altered due to changes in testing methodology, as such an 
alteration would necessitate reconsideration of compliance as well.''
    Clariant agreed with the proposed change from steel wool to the 
``wetted silicon carbide paper grit No. 1200.'' However, it stated that 
the surface of the test specimen with the ``wetted silicon carbide 
paper grit No. 1200'' will be rougher than after the steel wool polish 
step, resulting in ``higher corrosion rates'' reported than before.
    The JSAE suggested the following additional procedures: taking more 
time for abrading with the ``No. 1200 papers'' after the ``No. 320 
paper;'' and adding several steps ``(i.e., by using No. 320, No. 600, 
No. 800, and No. 1200) between the No. 320 and No. 1200 steps.'' JSAE 
did not suggest the length of time to be spent abrading, using each of 
these papers, or the total length of time to be spent using all of 
these suggested papers.
    Continental did not oppose the proposed changes to the Corrosion 
test, noting that the change from steel wool to silicon paper will not 
adversely affect the test results and will result in consistent test 
strip preparation.
    Toyota recommended that the current corrosion test be retained, 
arguing that it is repeatable and reproducible. It stated that it has 
found that variations in this test are minimal enough that the 
performance of the brake fluid may be assessed accurately. That company 
also stated that it has found that the testing variability improvements 
using the proposed test are unobservable, and submitted data from 
several tests in support of that position. Toyota argued that changing 
the test would result in an unnecessary burden on manufacturers.
    Shell asked for evidence that use of silicon carbide paper (as 
proposed in the NPRM) would result in less variability in test results. 
ABIC recommended that NHTSA ``may want to evaluate other abrading 
materials before they make a final recommendation.''
    In response, NHTSA notes that testing conducted to date with the 
new test apparatus does not indicate significant changes in test 
results from previous tests. However, the agency believes the new 
procedure will improve the enforceability of FMVSS No. 116. Also, the 
agency does not believe that additional changes in test apparatus will 
significantly change the test results.
    After carefully considering the comments, we have decided to adopt 
the proposed modification to the corrosion test. We believe this change 
will produce more consistent test results and thereby improve 
repeatability and reproducibility.
    We note that SAE standards J1703 and J1704 currently specify that 
the metal strips be prepared for testing by abrading with 320A paper 
only. The SAE Committee eliminated the preparation step involving steel 
wool because of the potential for the steel wool to react with some 
metal strips in a manner that could cause galvanic corrosion to occur. 
This type of reaction would not occur in a brake system environment and 
should therefore be avoided in a corrosion test.
    While we have considered specifying abrading with 320A paper only, 
as suggested by Castrol, we believe this preparation leaves the test 
strips in a rough condition that is not representative of the surface 
conditions of metals used to fabricate brake system components. 
Abrading or polishing with the 1200 paper results in a surface finish 
more similar to that of brake system components.
    We do not believe it is necessary to specify additional abrading 
steps, as suggested by JSAE. We believe the new visual requirements for 
test strip inspection should ensure that the test strips are 
sufficiently smooth.
    While it is possible, as suggested by Clariant, that the test's 
modification could in some cases result in slightly more corrosion, the 
available information, including that provided by ABIC, Toyota, and 
SAEJ, indicates that results from the current and new procedure are 
comparable. We do not believe this minor test change will cause any 
manufacturer to have to reformulate or otherwise change its brake 
fluid.
    We do believe, however, that the change will result in less 
variation of test strip condition prior to testing, thereby improving 
repeatability and reproducibility. Moreover, by eliminating the use of 
steel wool, it will address the potential problem of electrolysis. 
Therefore, we believe it is appropriate to adopt the change as 
proposed.

III. Statutory Bases for the Final Rule

    We have issued this final rule pursuant to our statutory authority. 
Under 49 U.S.C. Chapter 301, Motor Vehicle Safety (49 U.S.C. 30101 et 
seq.), the Secretary of Transportation is responsible for prescribing 
motor vehicle safety standards that are practicable, meet the need for 
motor vehicle safety, and are stated in objective terms. 49 U.S.C. 
30111(a). When prescribing such standards, the Secretary must consider 
all relevant, available motor vehicle safety information. 49 U.S.C. 
30111(b). The Secretary must also consider whether a proposed standard 
is reasonable, practicable, and appropriate for the type of motor 
vehicle or motor vehicle equipment for which it is prescribed and the 
extent to which the standard will further the statutory purpose of 
reducing traffic accidents and deaths and injuries resulting from 
traffic accidents. Id. Responsibility for promulgation of Federal motor 
vehicle safety standards was subsequently delegated to NHTSA. 49 U.S.C. 
105 and 322; delegation of authority at 49 CFR 1.50.
    As a Federal agency, before promulgating changes to a Federal motor 
vehicle safety standard, NHTSA also has a statutory responsibility to 
follow the informal rulemaking procedures mandated in the 
Administrative Procedure Act at 5 U.S.C. 553. Among these requirements 
are Federal Register publication of a general notice of proposed 
rulemaking, and giving interested persons an opportunity to participate 
in the rulemaking through submission of written data, views or 
arguments. After consideration of the public comments, we must 
incorporate into the rules adopted, a concise general statement of the 
rule's basis and purpose.
    The agency has carefully considered these statutory requirements in 
promulgating this final rule to amend FMVSS No. 116. As previously 
discussed in detail, we have solicited public comment in an NPRM and 
have carefully considered the public

[[Page 67658]]

comments before issuing this final rule. As a result, we believe that 
this final rule reflects consideration of all relevant available motor 
vehicle safety information. Consideration of all these statutory 
factors has resulted in the following two decisions in this final rule. 
First, we have decided to remove the evaporation test from FMVSS No. 
116. Because the evaporation test was initially adopted into FMVSS No. 
116 to meet the need for motor vehicle safety, we indicated in the NPRM 
that we were concerned that removal of the evaporation test could 
permit the introduction of inferior brake fluids into the United States 
market, even if current brake fluid manufacturers would be unlikely to 
introduce such products.
    After reviewing the public comments and upon further consideration 
of the evaporation test issue, we are persuaded that the evaporation 
test is unnecessary given changes in brake system designs and in brake 
fluid formulations since the test was developed, and that other tests 
in FMVSS No. 116 will prevent the introduction of inferior brake fluids 
into the United States market. In particular, we noted that the 
evaporation test dates back to a time when hydraulic brake systems were 
vented and when brake fluid contained alcohol or castor oil (substances 
with lower boiling point temperatures than present day brake fluid 
formulas). Present day brake fluid formulas do not contain alcohol or 
castor oil. Moreover, FMVSS No. 116 includes other tests, such as the 
boiling point test, the corrosion test, the water tolerance test, and 
the stroking test, which will prevent the introduction of inferior 
brake fluids into the United States market.
    Second, after carefully considering the comments, we have decided 
to adopt the proposed modification to the corrosion test. We believe 
this change will produce more consistent test results and thereby 
improve repeatability and reproducibility. We note that the current 
corrosion test (which is revised in this final rule) of Standard No. 
116 is based on an SAE recommended practice. SAE standards J1703 and 
J1704 currently specify that metal strips used in the corrosion test be 
prepared for testing by abrading with 320A paper only. The SAE 
Committee eliminated the preparation step involving steel wool because 
steel wool has the potential to react with some metal strips in a 
manner that could cause electrolysis to occur. An electrolytic reaction 
would not occur in a brake system and should therefore be avoided in a 
corrosion test. We have changed the SAE recommended procedure as 
follows. While we considered specifying abrading with 320A paper only, 
we believe this preparation leaves the test strips in a rough condition 
that is not representative of the surface conditions of metals used to 
fabricate brake system components. We have concluded that since 
abrading or polishing with the 1200 paper results in a surface finish 
more similar to that of brake system components, adding the extra step 
of abrading the test strips with the 1200 paper would meet the need for 
motor vehicle safety.

IV. Effective Dates

    In the NPRM, we proposed to make the amendments proposed in the 
NPRM effective one year after publication of a final rule in the 
Federal Register. We received no comments on the effective date issue. 
Therefore, as proposed in the NPRM, and in accordance with 49 U.S.C. 
30111(d) Effective date of standards, the provisions in this final rule 
making changes to the corrosion test take effect one year from the date 
of publication of this final rule in the Federal Register. In this 
final rule, we have determined that there is no longer a safety need 
for the evaporation test. Therefore, in order to timely remove cost and 
regulatory burdens associated with testing for brake fluid evaporation 
(for which NHTSA has determined there is no longer a safety need), the 
provisions regarding the evaporation test will be removed sixty days 
from the date of publication of this final rule in the Federal 
Register.

V. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    NHTSA has considered the impact of this rulemaking action under 
Executive Order 12866 and the Department of Transportation's regulatory 
policies and procedures. It was not reviewed by the Office of 
Management and Budget under E.O. 12866, ``Regulatory Planning and 
Review.'' Further, it is not significant for the purposes of the DOT 
policies and procedures.
    This final rule does not affect the stringency of Standard No. 116, 
but instead improves the repeatability and reproducibility of the 
existing corrosion test and removes an outdated test that is no longer 
needed for safety.
    Since, in this final rule, we have removed the evaporation test and 
made only minor changes to the corrosion test, the costs of the final 
rule are minimal. We estimate that there are five to 10 brake fluid 
manufacturers that provide brake fluid for the United States market, 
including OEM and aftermarket brake fluid, and a somewhat larger number 
of packagers of brake fluid. The brake fluid manufacturers will need to 
conduct testing to determine that their products meet the new 
requirements after these amendments become effective. However, the 
testing costs should not increase significantly because this final rule 
requires changes in relatively inexpensive test equipment. There may be 
a slight cost savings, as the brake fluid manufacturers no longer need 
ensure that their brake fluids meet the evaporation test. For these 
reasons, the final rule is unlikely to result in any change in the cost 
of brake fluid.

B. Regulatory Flexibility Act

    We have considered the effects of this rulemaking action under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) I hereby certify that 
the final rule will not have a significant economic impact on a 
substantial number of small entities. The statement of the factual 
basis for this certification is that, as discussed above, the final 
rule does not affect the stringency of Standard No. 116, but instead 
removes the standard's evaporation test, to improve enforceability. 
Cost savings resulting from brake fluid manufacturers no longer having 
to conduct an evaporation test are unlikely to result in any change in 
the cost of brake fluid. Therefore, the changes made in this final rule 
will not have any significant economic impacts on small businesses, 
small organizations or small governmental jurisdictions.

C. National Environmental Policy Act

    NHTSA has analyzed this final rule for the purposes of the National 
Environmental Policy Act and determined that it would not have any 
significant impact on the quality of the human environment.

D. Executive Order 13132 (Federalism)

    Executive Order 13132 requires us to develop an accountable process 
to ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications.'' ``Policies that have federalism implications'' is 
defined in the Executive Order to include regulations that have 
``substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.'' Under 
Executive Order 13132, we may not issue a regulation with Federalism 
implications, that imposes substantial direct compliance costs, and 
that is not required by statute, unless the Federal

[[Page 67659]]

government provides the funds necessary to pay the direct compliance 
costs incurred by State and local officials early in the process of 
developing the proposed regulation. We also may not issue a regulation 
with Federalism implications and that preempts State law unless we 
consult with State and local officials early in the process of 
developing the proposed regulation.
    The agency has analyzed this final rule in accordance with the 
principles and criteria set forth in Executive Order 13132 and has 
determined that it does not have sufficient federalism implications to 
warrant consultation with State and local officials or the preparation 
of a federalism summary impact statement. The final rule will not have 
substantial direct effects on the States, on the current Federalism-
State relationship, or on the current distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132. The reason is that this final rule applies to 
brake fluid manufacturers, not to the States and local governments.

E. Unfunded Mandates Act

    The Unfunded Mandates Reform Act (UMRA) of 1995 requires agencies 
to prepare a written assessment of the costs, benefits and other 
effects of proposed or final rules that include a Federal mandate 
likely to result in the expenditure by State, local or tribal 
governments, in the aggregate, or by the private sector, of more than 
$100 million annually (adjusted for inflation with base year of 1995). 
This final rule will not result in the expenditure by State, local or 
tribal governments, in the aggregate, or by the private sector, of more 
than $100 million annually. Thus, this final rule is not subject to the 
requirements of sections 202 and 205 of the UMRA.

F. Executive Order 12778 (Civil Justice Reform)

    Pursuant to Executive Order 12778, ``Civil Justice Reform,'' we 
have considered whether this final rule has any retroactive effect. We 
conclude that it does not have such an effect. Under 49 U.S.C. 30103, 
whenever a Federal motor vehicle safety standard is in effect, a state 
may not adopt or maintain a safety standard applicable to the same 
aspect of performance which is not identical to the Federal standard, 
except to the extent that the state requirement imposes a higher level 
of performance and applies only to vehicles procured for the State's 
use.
    49 U.S.C. 30161 sets forth a procedure for judicial review of final 
rules establishing, amending or revoking Federal motor vehicle safety 
standards. That section does not require submission of a petition for 
reconsideration or other administrative proceedings before parties may 
file suit in court.

G. Paperwork Reduction Act

    NHTSA has determined that this final rule will not impose any 
``collection of information'' burdens on the public, within the meaning 
of the Paperwork Reduction Act of 1995 (PRA). This rulemaking action 
will not impose any filing or recordkeeping requirements on any 
manufacturer or any other party.

H. Regulation Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) to each regulatory action listed in the Unified Agenda of 
Federal Regulations. The Regulatory Information Service Center 
publishes the Unified Agenda in April and October of each year. You may 
use the RIN contained in the heading at the beginning of this document 
to find this action in the Unified Agenda.

I. Plain Language

    Executive Order 12866 and the President's memorandum of June 1, 
1998, require each agency to write all rules in plain language. 
Application of the principles of plain language includes consideration 
of the following questions:

--Have we organized the material to suit the public's needs?
--Are the requirements in the rule clearly stated?
--Does the rule contain technical language or jargon that is not clear?
--Would a different format (grouping and order of sections, use of 
headings, paragraphing) make the rule easier to understand?
--Would more (but shorter) sections be better?
--Could we improve clarity by adding tables, lists, or diagrams?
--What else could we do to make the rule easier to understand?
    If you have any responses to these questions, please include them 
in comments to the docket number cited in the heading of this notice.

J. Executive Order 13045 Economically Significant Rules 
Disproportionately Affecting Children

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that: (1) is determined to be ``economically significant'' as 
defined under E.O. 12866, and (2) concerns an environmental, health or 
safety risk that NHTSA has reason to believe may have a 
disproportionate effect on children. This regulatory action does not 
meet either of those criteria.

K. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) requires NHTSA to evaluate and use existing voluntary 
consensus standards \5\ in its regulatory activities unless doing so 
would be inconsistent with applicable law (e.g., the statutory 
provisions regarding NHTSA's vehicle safety authority) or otherwise 
impractical. We note that this final rule's removal of the evaporation 
test from FMVSS No. 116 is consistent with the decision of the SAE 
Brake Fluids Standards Committee to remove the evaporation test from 
the SAE standard. We further note that the current corrosion test 
(which is revised in this final rule) of Standard No. 116 is based on 
an SAE recommended practice. SAE standards J1703 and J1704 currently 
specify that metal strips used in the corrosion test be prepared for 
testing by abrading with 320A paper only. The SAE Committee eliminated 
the preparation step involving steel wool because steel wool has the 
potential to react with some metal strips in a manner that could cause 
electrolysis to occur. An electrolytic reaction would not occur in a 
brake system and should therefore be avoided in a corrosion test. We 
have changed the SAE recommended procedure as follows. While we 
considered specifying abrading with 320A paper only, we believe this 
preparation leaves the test strips in a rough condition that is not 
representative of the surface conditions of metals used to fabricate 
brake system components. We have concluded that since abrading or 
polishing with the 1200 paper results in a surface finish more similar 
to that of brake system components, we are adding the extra step of 
abrading the test strips with the 1200 paper.
---------------------------------------------------------------------------

    \5\ Voluntary consensus standards are technical standards 
developed or adopted by voluntary consensus standards bodies. 
Technical standards are defined by the NTTAA as ``performance-based 
or design-specific technical specifications and related management 
systems practices.'' They pertain to ``products and processes, such 
as size, strength, or technical performance of a product, process or 
material.''
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List of Subjects in 49 CFR Part 571

    Imports, Motor vehicle safety, Motor vehicles.

[[Page 67660]]


0
In consideration of the foregoing, 49 CFR part 571 is amended as set 
forth below.

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

0
1. The authority citation for part 571 continues to read as follows:

    Authority: 49 U.S.C. 322, 30111, 30115, 30117 and 30166; 
delegation of authority at 49 CFR 1.50.

0
2. Section 571.116 is amended by:
0
a. Removing and reserving S5.1.8;
0
b. Revising S6.6.3(e);
0
c. Revising in S6.6.4(a), the first and third sentences;
0
d. Removing and reserving S6.8;
0
e. Removing S6.8.1;
0
f. Removing S6.8.2;
0
g. Removing S6.8.3; and
0
h. Removing S6.8.4.
    The revisions read as follows:


Sec.  571.116  Standard No. 116; Motor vehicle brake fluids.

* * * * *
    S6.6.3 * * *
    (e) Supplies for polishing strips. Waterproof silicon carbide 
paper, grit No. 320A and grit 1200; lint-free polishing cloth.
* * * * *
    S6.6.4 * * *
    (a) * * * Except for the tinned iron strips, abrade corrosion test 
strips on all surface areas with 320A silicon carbide paper wet with 
ethanol (isopropanol when testing DOT 5 SBBF fluids) until all surface 
scratches, cuts and pits visible to an observer having corrected visual 
acuity of 20/40 (Snellen ratio) at a distance of 300 mm (11.8 inches) 
are removed. * * * Except for the tinned iron strips, further abrade 
the test strips on all surface areas with 1200 silicon carbide paper 
wet with ethanol (isopropanol when testing DOT 5 SBBF fluids), again 
using a new piece of paper for each different type of metal. * * *
* * * * *

    Issued on: November 9, 2004.
Jeffrey W. Runge,
Administrator.
[FR Doc. 04-25446 Filed 11-18-04; 8:45 am]
BILLING CODE 4910-59-P