Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Notices 52469 

longer material that is properly secured 

with tie downs, as required by FMCSA’s 

cargo securement regulations. A copy of 

the PINOVA application is in the docket 

referenced at the beginning of this 

notice. 

Request for Comments 

In accordance with 49 U.S.C. 31315 

and 31136(e), FMCSA requests public 

comment from all interested persons on 

PINOVA’s application for an exemption 

from 49 CFR 393.116(a)(3). The agency 

will consider all comments received 

before the close of business on the 

comment closing date indicated at the 

beginning of this notice. Comments will 

be available for examination in the 

docket at the location listed under the 

address section of this notice. The 

agency will file comments received after 

the comment closing date in the public 

docket, and will consider them to the 

extent practicable. In addition to late 

comments, the FMCSA will also 

continue to file, in the public docket, 

relevant information that becomes 

available after the comment closing 

date. Interested persons should monitor 

the public docket for new material. 

Issued on: August 29, 2005. 

Warren E. Hoemann, 

Deputy Administrator. 

[FR Doc. 05–17508 Filed 9–1–05; 8:45 am] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

[Docket No. NHTSA–2005–20858; Notice 3] 

DOT Chemical, Notice of Appeal of 

Denial of Petition for Decision of 

Inconsequential Noncompliance 

DOT Chemical has appealed a 

decision by the National Highway 

Traffic Safety Administration that 

denied its petition for a determination 

that its noncompliance with Federal 

Motor Vehicle Safety Standard (FMVSS) 

No. 116, ‘‘Motor vehicle brake fluids,’’

is inconsequential to motor vehicle 

safety. 

Notice of receipt of the petition was 

published on April 14, 2005, in the 

Federal Register (70 FR 19837). On July 

18, 2005, NHTSA published a notice in 

the Federal Register denying DOT 

Chemical’s petition (70 FR 41254), 

stating that the petitioner had not met 

its burden of persuasion that the 

noncompliance is inconsequential to 

motor vehicle safety. 

This notice of receipt of DOT 

Chemical’s appeal is published in 

accordance with NHTSA’s regulations 

(49 CFR 556.7 and 556.8) and does not 

represent any agency decision or other 

exercise of judgment concerning the 

merits of the appeal. 

Affected are a total of approximately 

50,000 containers of DOT 4 brake fluid, 

lot numbers KMF02 and KMF03, 

manufactured in June 2004. FMVSS No. 

116 requires that, when tested as 

referenced in S5.1.7 ‘‘Fluidity and 

appearance at low temperature,’’ S5.1.9 

‘‘Water tolerance,’’ and S5.1.10 

‘‘Compatibility,’’ the brake fluid shall 

show no crystallization or 

sedimentation. The subject brake fluid 

shows crystallization and sedimentation 

when tested as referenced in S5.1.7 at 

–40 °F and –58 °F, sedimentation when 

tested as referenced in S5.1.9 at –40 °F, 

and crystallization when tested as 

referenced in S5.1.10 at –40 °F. 

DOT Chemical asserted that the 

noncompliance is inconsequential to 

motor vehicle safety and that no 

corrective action is warranted. DOT 

Chemical stated that there are fiber-like 

crystals in the fluid, which are borate 

salts, and 

are a natural part (no contamination) of DOT 

4 brake fluid production (just fallen out of 

solution in some packaged goods) and have 

not demonstrated any flow restrictions even 

at extended periods of low temperatures at 

minus 40 °F. Furthermore, when the fluid is 

subjected to temperatures in a normal 

braking system, the crystals go back into 

solution in some cases not to reappear at all 

at ambient temperatures. 

NHTSA reviewed the petition and 

determined that the noncompliance is 

not inconsequential to motor vehicle 

safety. In its denial, NHTSA noted that 

it granted petitions for determinations of 

inconsequential noncompliance of 

FMVSS No. 116 to Dow Corning 

Corporation (59 FR 52582, October 18, 

1994) and to First Brands Corporation 

(59 FR 62776, December 6, 1994). In the 

case of Dow, the FMVSS No. 116 

noncompliance arose from a ‘‘slush-like 

crystallization’’ that dispersed ‘‘under 

slight agitation or warming.’’ NHTSA 

accepted Dow’s argument that its ‘slushlike crystallization’’ does not consist of 

‘crystals that are either water-based ice, 

abrasive, or have the potential to clog 

brake system components.’’ NHTSA 

concurred with Dow’s conclusion that 

‘‘the crystallization that occurred ought 

not to have an adverse effect upon 

braking.’’ In the case of First Brands, the 

FMVSS No. 116 noncompliance arose 

from a ‘‘soft non-abrasive gel’’ that also 

dispersed under slight agitation or 

warming. 

NHTSA determined that facts leading 

to the grants of the inconsequential 

noncompliance petitions of Dow and 

First Brands are not analogous to the 

facts in DOT Chemical’s situation. In 

contrast, DOT Chemical’s 

noncompliance results from ‘‘fiber-like 

crystals’’ made of borate salts. These 

borate salt crystals did not disperse 

under slight agitation or warming, but 

had to be physically removed by 

filtration. DOT Chemical asserted that 

‘‘[f]iltration, using Whatman #40 filter 

paper (25–30 micron particle size) 

removed all crystals. The crystals are 

approximately 30–50 microns in width 

and 3–5 mm in length.’’ DOT Chemical 

did not explain how it can assure that 

crystals smaller than 25 microns in 

width did not remain in the brake fluid. 

In its denial of DOT Chemical’s 

petition, NHTSA stated that—even 

assuming that all larger-sized crystals 

were removed from the fluid—the 

agency is concerned that crystals that 

are of a size smaller than 25 microns by 

3–5 mm would remain in the brake 

fluid. The thread-like nature of this type 

of crystallization has the potential to 

clog brake system components, 

particularly in severe cold operation 

conditions. Impurities such as these in 

the brake system may cause the system 

to fail, i.e., to lose the ability to stop the 

vehicle over time due to the 

accumulation of compressible material 

in the brake lines. These impurities may 

also result in the failure of individual 

brake system components due to the 

corrosive nature of the contaminants 

themselves. 

In consideration of the foregoing, 

NHTSA decided that the petitioner did 

not meet its burden of persuasion that 

the noncompliance it described is 

inconsequential to motor vehicle safety. 

Accordingly, its petition was denied. 

In its appeal from NHTSA’s denial, 

DOT Chemical states that ‘‘[t]he words 

and phrases used in the [original] 

petition were not identical to the 

descriptions in the previous cases. DOT 

Chemical wishes to clear up any 

misunderstandings from the original 

petition and reword to match the 

precedent cases.’’

DOT Chemical provides the following 

statements in its appeal: 

—Our choice of the word ‘‘crystals’’ can also 

be described as ‘‘slush-like crystallization’’

(as in the granted petition in 1994) or a 

‘‘soft non-abrasive gel,’’ a look at the 

sample is worth a thousand words or even 

rubbing the material between the fingers. 

—Our ‘‘crystals’’ dispersed and/or went 

completely into solution ‘‘under slight 

agitation or warming’’ (as in the granted 

petition in 1994). 

—Slight Agitation: In DOT Chemical’s 

petition the phrase ‘‘DOT Chemical tested 

the fluid, agitated the material before 

testing to insure that the crystals were part 

of each test’’ we believe implied that the 

52470 Federal Register / Vol. 70, No. 170 / Friday, September 2, 2005 / Notices 

material went into solution when agitated. 

We simply needed to make sure that the 

test material was not just decanted brake 

fluid without ‘‘crystals.’’ When agitated, 

‘‘crystals’’ or ‘‘slush-like crystallization’’

was not seen. 

—Warming: In DOT Chemical’s petition the 

phrase ‘‘when the fluid is subjected to 

temperatures in a normal braking system, 

the crystals go back into solution in some 

cases not to reappear at all at ambient 

temperatures’’ we believe implied the 

warming scenario mentioned in the 

granted petition cases. 

—In the case of the granted petitions stating 

that ‘‘its ‘slush-like crystallization’ does 

not consist of ‘crystals that are either 

water-based ice, abrasive, or have the 

potential to clog brake system 

components’ ’’ we believe implies the same 

thing as our statements ‘‘There is no 

contamination in this fluid’’ and ‘‘the 

crystals are a natural part (no 

contamination.’’

—In the case of the granted petitions stating 

that ‘‘the crystallization that occurred 

ought not to have an adverse effect upon 

braking’’ we believe is carried to an 

additional degree by DOT Chemical’s 

testing of the material at –40 °F through the 

viscometer (with dimensions and drawing 

provided) and stating that the diameter is 

much smaller than brake system lines. 

Specific phrases in DOT Chemical’s appeal 

are ‘‘The crystals presented no problems 

with obstruction,’’ ‘‘results again showed 

no obstruction,’’ and ‘‘have not 

demonstrated any flow restrictions even at 

extended periods of low temperatures at 

minus 40 °F.’’ Much time was spent on the 

flow and low temperatures because all tests 

passed except partial test failures 

concerning sedimentation and low 

temperatures. 

Interested persons are invited to 

submit written data, views, and 

arguments on the petition appeal 

described above. Comments must refer 

to the docket and notice number cited 

at the beginning of this notice and be 

submitted by any of the following 

methods. Mail: Docket Management 

Facility, U.S. Department of 

Transportation, Nassif Building, Room 

PL–401, 400 Seventh Street, SW., 

Washington, DC, 20590–0001. Hand 

Delivery: Room PL–401 on the plaza 

level of the Nassif Building, 400 

Seventh Street, SW., Washington, DC. It 

is requested, but not required, that two 

copies of the comments be provided. 

The Docket Section is open on 

weekdays from 10 a.m. to 5 p.m. except 

Federal Holidays. Comments may be 

submitted electronically by logging onto 

the Docket Management System Web 

site at http://dms.dot.gov. Click on 

‘‘Help’’ to obtain instructions for filing 

the document electronically. Comments 

may be faxed to 1–202–493–2251, or 

may be submitted to the Federal 

eRulemaking Portal: go to http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

The petition appeal, supporting 

materials, and all comments received 

before the close of business on the 

closing date indicated below will be 

filed and will be considered. All 

comments and supporting materials 

received after the closing date will also 

be filed and will be considered to the 

extent possible. When the petition 

appeal is granted or denied, notice of 

the decision will be published in the 

Federal Register pursuant to the 

authority indicated below. 

Comment closing date: October 3, 

2005. 

Authority (49 U.S.C. 30118, 30120: 

delegations of authority at CFR 1.50 and 

501.8) 

Issued on: August 29, 2005. 

Ronald L. Medford, 

Senior Associate Administrator for Vehicle 

Safety. 

[FR Doc. 05–17479 Filed 9–1–05; 8:45 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

[Docket No. NHTSA–2005–22236] 

Annual List of Defect and 

Noncompliance Decisions Affecting 

Nonconforming Imported Vehicles 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), DOT. 

ACTION: Annual list of defect and 

noncompliance decisions affecting 

nonconforming vehicles imported by 

registered importers. 

SUMMARY: This document contains a list 

of vehicles recalled by their 

manufacturers during Calendar Year 

2004 (January 1, 2004 through December 

31, 2004) to correct a safety-related 

defect or a noncompliance with an 

applicable Federal motor vehicle safety 

standard (FMVSS). The listed vehicles 

are those that NHTSA has decided are 

substantially similar to vehicles 

imported into the United States that 

were not originally manufactured and 

certified to conform to all applicable 

FMVSS. The registered importers of 

those nonconforming vehicles are 

required to provide their owners with 

notification of, and a remedy for, the 

defects or noncompliances for which 

the listed vehicles were recalled. 

FOR FURTHER INFORMATION CONTACT: 

Coleman Sachs, Office of Vehicle Safety 

Compliance, NHTSA (202–366–3151). 

SUPPLEMENTARY INFORMATION: Under 49 

U.S.C. 30141(a)(1)(A), a motor vehicle 

that was not originally manufactured to 

conform to all applicable Federal motor 

vehicle safety standards (FMVSS) shall 

be refused admission into the United 

States unless NHTSA has decided that 

the motor vehicle is substantially 

similar to a motor vehicle of the same 

model year that was originally 

manufactured for importation into and 

sale in the United States and certified 

under 49 U.S.C. 30115. Once NHTSA 

decides that a nonconforming vehicle is 

eligible for importation, it may be 

imported by a person who is registered 

with the agency pursuant to 49 U.S.C. 

30141(c). Before releasing the vehicle 

for use on public streets, roads, or 

highways, the registered importer must 

certify to NHTSA, pursuant to 49 U.S.C. 

30146(a), that the vehicle has been 

brought into conformity with all 

applicable FMVSS. 

If a vehicle originally manufactured 

for importation into and sale in the 

United States is decided to contain a 

defect related to motor vehicle safety, or 

not to comply with an applicable 

FMVSS, 49 U.S.C. 30147(a)(1)(A) 

provides that the same defect or 

noncompliance is deemed to exist in 

any nonconforming vehicle that NHTSA 

has decided to be substantially similar 

and for which a registered importer has 

submitted a certificate of conformity to 

the agency. Under 49 U.S.C. 

30147(a)(1)(B), the registered importer is 

deemed to be the nonconforming 

vehicle’s manufacturer for the purpose 

of providing notification of, and a 

remedy for, the defect or 

noncompliance. 

To apprise registered importers of the 

vehicles for which they must conduct a 

notification and remedy (i.e., ‘‘recall’’) 

campaign, 49 U.S.C. 30147(a)(2) 

requires NHTSA to publish in the 

Federal Register notice of any defect or 

noncompliance decision that is made 

with respect to substantially similar 

U.S. certified vehicles. Annex A 

contains a list of all such decisions that 

were made during Calendar Year 2004. 

The list identifies the Recall Number 

that was assigned to the recall by 

NHTSA after the agency received the 

manufacturer’s notification of the defect 

or noncompliance under 49 CFR part 

573. After December 31, 2005, NHTSA 

will publish a comparable list of all 

defect and noncompliance decisions 

affecting nonconforming imported 

vehicles that are made during the 

current calendar year. 

Under 49 U.S.C. 30120(a), a 

manufacturer may remedy a safetyrelated defect or noncompliance in a 

motor vehicle by repairing the vehicle,