[Federal Register Volume 70, Number 176 (Tuesday, September 13, 2005)]
[Notices]
[Pages 54102-54103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-18149]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

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


Equistar Chemicals, LP, Grant of Petition for Decision of 
Inconsequential Noncompliance

    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 <plus-minus>2 [deg]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 [deg]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 [deg]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:


[[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 [deg]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 [deg]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 [deg]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 [deg]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 [deg]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]
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