67654 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

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.

11 D010 waste generated by this facility may be treated by Heritage Environmental Services, LLC. at their treatment facility in Indianapolis, Indiana. 12 D010 waste generated by this facility may be treated by Chemical Waste Management, Chemical Services, LLC. at their treatment facility in 

Model City, New York. 

Note: NA means Not Applicable. 

[FR Doc. 04–25716 Filed 11–18–04; 8:45 am] 

BILLING CODE 6560–50–P

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.

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 

§ 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.

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. 

Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 67655

3Tinned 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.

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.

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 

67656 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

4Brake TEC, ‘‘Re: FMVSS No. 116–Evaporation 

Test’’ Docket No. NHTSA–2000–8633–13.

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.

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 NHTSAsponsored 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. 

Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 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 

67658 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

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 

Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 67659

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.’’

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.

List of Subjects in 49 CFR Part 571 

Imports, Motor vehicle safety, Motor 

vehicles.

67660 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Rules and Regulations 

1See 61 FR 2003.

■ In consideration of the foregoing, 49 

CFR part 571 is amended as set forth 

below.

PART 571—FEDERAL MOTOR 

VEHICLE SAFETY STANDARDS

■ 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.

■ 2. Section 571.116 is amended by:

■ a. Removing and reserving S5.1.8;

■ b. Revising S6.6.3(e);

■ c. Revising in S6.6.4(a), the first and 

third sentences;

■ d. Removing and reserving S6.8;

■ e. Removing S6.8.1;

■ f. Removing S6.8.2;

■ g. Removing S6.8.3; and

■ h. Removing S6.8.4.

The revisions read as follows:

§ 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

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety 

Administration 

49 CFR Part 571 

[Docket No. NHTSA–2002–11875; Notice 2] 

RIN 2127–AI04 

Federal Motor Vehicle Safety 

Standards; Rear Impact Guard Labels

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT).

ACTION: Final rule.

SUMMARY: This document amends the 

Federal motor vehicle safety standard 

on rear impact guards (underride 

guards). Under the current requirement, 

rear impact guards must be permanently 

labeled with the guard manufacturer’s 

name and address, the month and year 

in which the guard was manufactured, 

and the letters ‘‘DOT.’’ In response to 

petitions for rulemaking, the agency 

issued a notice of proposed rulemaking 

(NPRM) proposing to allow 

manufacturers to place the label on the 

rear impact guard where it may be less 

exposed to damage, provided that the 

label does not interfere with the 

required retroreflective sheeting and is 

readily accessible for visual inspection. 

No comments were received. Thus, in 

this document, the agency is adopting 

the proposal as set forth in the notice of 

proposed rulemaking.

DATES: This final rule is effective 

January 18, 2005. 

Petitions: Petitions for reconsideration 

must be received by January 3, 2005.

ADDRESSES: Petitions for reconsideration 

should refer to DOT Docket No. 

NHTSA–2002–11875 and be submitted 

to: Administrator, Room 5220, National 

Highway Traffic Safety Administration, 

400 7th Street, SW., Washington, DC 

20590. Please see the Privacy Act 

heading under Regulatory Notices.

FOR FURTHER INFORMATION CONTACT: For 

non-legal issues, you may call Michael 

Huntley, Office of Vehicle Safety 

Standards, (Telephone: 202–366–0029) 

(Fax: 202–493–2739) (E-Mail: 

Michael.Huntley@nhtsa.dot.gov). 

For legal issues, you may call Mr. 

George Feygin, Office of Chief Counsel, 

(Telephone: 202–366–2992) (Fax: 202–

366–3820) (E-Mail: 

George.Feygin@nhtsa.dot.gov). 

You may send mail to either of these 

officials at: National Highway Traffic 

Safety Administration, 400 7th Street, 

SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

I. Background 

On January 24, 1996, NHTSA 

published a final rule establishing two 

Federal motor vehicle safety standards 

(FMVSSs) to address the problem of rear 

underride crashes.1 Underride occurs 

when a light vehicle, such as a 

passenger car, crashes into the rear end 

of a heavy truck that has a chassis 

higher than the hood of the light 

vehicle. In certain instances, the light 

vehicle slides under or ‘‘underrides’’ the 

rear end of the heavy vehicle such that 

the rear end of the trailer strikes and 

enters the passenger compartment of the 

light vehicle, resulting in passenger 

compartment intrusion (PCI). PCI can 

result in severe injuries and fatalities to 

the light vehicle occupants due to 

occupant contact with the rear end of 

the heavy truck. The final rule 

established two standards that operate 

together to reduce the number of 

injuries and fatalities resulting from 

underride crashes.

The first standard, FMVSS No. 223, 

‘‘Rear impact guards,’’ specifies 

performance requirements that rear 

impact guards (underride guards) must 

meet before they can be installed on 

new trailers. It specifies strength 

requirements and test procedures that 

NHTSA uses to determine compliance 

with those requirements. FMVSS No. 

223 also requires the underride guard 

manufacturer to provide instructions on 

the proper installation of the guard. 

Finally, the underride guards must be 

permanently labeled with the guard 

manufacturer’s name and address, the 

month and year in which the underride 

guard was manufactured, and the letters 

‘‘DOT’’. The letters constitute 

certification by the manufacturer that 

the underride guard meets all the 

performance requirements of FMVSS 

No. 223. The standard requires 

manufacturers to place the label on the 

forward-facing surface of the horizontal 

member of the guard, 305 mm (12 

inches) inboard of the right end of the 

guard, so that, as the guard is mounted 

on the vehicle, the label will be readily 

visible to Federal Motor Carrier Safety 

Administration (FMCSA) inspectors. 

The second standard, FMVSS No. 

224, ‘‘Rear impact protection, requires 

most new trailers with a GVWR of 4,536 

kilograms (10,000 pounds) or more to be 

equipped with an underride guard 

meeting FMVSS No. 223. FMVSS No. 

224 specifies requirements regarding the 

location of the underride guard relative 

to the rear of the trailer. It also requires 

that the underride guard be mounted on