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###### Department of Transportation

###### National Highway Traffic Safety Administration 

          - [Docket No. NHTSA 2005-21383; Notice 2] 

                    Equistar Chemicals, LP (Equistar) has determined that certain brake fluid that was manufactured in 2004 and that Equistar distributed does not comply with S5.1.7 of 49 CFR 571.116, Federal Motor Vehicle Safety Standard (FMVSS) No. 116, “Motor vehicle brake fluids.” Pursuant to 49 U.S.C. 30118(d) and 30120(h), Equistar has petitioned for a determination that this noncompliance is inconsequential to motor vehicle safety and has filed an appropriate report pursuant to 49 CFR part 573, “Defect and Noncompliance Reports.” Notice of receipt of a petition was published, with a 30-day comment period, on June 9, 2005, in the                     **Federal Register**                     (70 FR 33769). NHTSA received no comments.                 

Affected are a total of approximately 170,000 gallons of DOT-3 brake fluid designated as Lot 630 and manufactured by Oxid, LP in September 2004. FMVSS No. 116, S5.1.7, “Fluidity and appearance at low temperature,” requires that when brake fluid is tested as specified in the standard at storage temperatures of minus 50 ±2 °C,

(a) The fluid shall show no sludging, sedimentation, crystallization, or stratification; [and] 

(b) Upon inversion of the sample bottle, the time required for the air bubble to travel to the top of the fluid shall not exceed 35 seconds * * *

NHTSA's compliance tests, conducted by ABIC Testing Laboratories, Inc. (ABIC), found that at minus 50 °C, the noncompliant brake fluid freezes, therefore showing crystallization and failing the requirements of S5.1.7(a). NHTSA's compliance tests also found that at minus 50 °C, upon inversion of the sample bottle, the time required for the air bubble to travel to the top of the fluid exceeds 35 seconds, therefore failing the requirements of S5.1.7(b). 

Equistar believes that the noncompliance is inconsequential to motor vehicle safety and that no corrective action is warranted. Equistar stated the following: 
      ( print page 54103)    
Equistar asked Oxid, LP [the brake fluid manufacturer] to supply a copy of its data reporting the results of the tests it had previously conducted for * * * [the brake] fluid pursuant to the test requirements of S6.7 * * *. The data show that [the brake fluid] unconditionally passed the tests required by the applicable standard, including the minus 50 °C test. 

Equistar stated that it had the noncompliant brake fluid further tested by another testing center, Case Consulting Laboratories, Inc. (Case), and that:

The samples tested by Case passed all of the required tests, including the minus 50 °C air bubble and appearance test, except that the tested sample * * * began to form crystals. It bears note that the bubble travel time on this sample was 2.7 seconds against the standard's requirement of 35 seconds maximum. Further, the appearance of the sample after testing at minus 50 °C was the same as before the testing.

Equistar stated that “the crystals and globules” in the brake fluid “would not pose a threat to the operation of the brake fluid.” Case certified that the globules formed at minus 50 °C were of a nonabrasive nature and fall back into solution upon slight agitation and warming. ABIC confirmed informally to NHTSA that Case's statement is correct. 

In its petition, Equistar referred to two prior NHTSA grants of inconsequential noncompliance petitions which it claims are similar. These are Dow Corning Corporation (59 FR 52582, October 18, 1994) and First Brands Corporation (59 FR 62776, December 6, 1994). Equistar stated that NHTSA should grant its petition based on the same rationale as it used to grant the previous two petitions. 

NHTSA agrees with Equistar that the noncompliance is inconsequential to motor vehicle safety. Both Case and ABIC determined that that the globules which formed at minus 50 °C were of a nonabrasive nature and fell back into solution upon slight agitation and warming. In granting both the Dow Corning and First Brands petitions referenced above, NHTSA determined that the type of crystallization which is of a nonabrasive nature and will readily disperse under slight agitation or warming ought not have an adverse effect upon braking. Therefore the cases are analogous. However, NHTSA wants to be clear that it maintains a distinction, which it established in granting the Dow Corning and First Brands petitions, between crystals which are of a nonabrasive nature and fall back into solution upon slight agitation and warming, as opposed to crystals that are abrasive or do not fall back into solution, and that may have the potential to clog brake system components. Brake fluid which exhibits the latter characteristics do not fall under the Dow Corning and First Brands precedent. 

In consideration of the foregoing, NHTSA has decided that the petitioner has met its burden of persuasion that the noncompliance described is inconsequential to motor vehicle safety. Accordingly, Equistar's petition is granted and the petitioner is exempted from the obligation of providing notification of, and a remedy for, the noncompliance. 

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

Issued on: September 7, 2005. 

Ronald L. Medford, 

Senior Associate Administrator for Vehicle Safety. 

[FR Doc. 05-18149 Filed 9-12-05; 8:45 am] 

BILLING CODE 4910-59-P