05-11428. Equistar Chemicals, LP, Receipt 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.” Equistar has filed an appropriate report pursuant to 49 CFR part 573, “Defect and Noncompliance Reports.”

Pursuant to 49 U.S.C. 30118(d) and 30120(h), Equistar has petitioned for an exemption from the notification and remedy requirements of 49 U.S.C. chapter 301 on the basis that this noncompliance is inconsequential to motor vehicle safety.

This notice of receipt of Equistar's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.

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 found that at minus 50° C, the noncompliant brake fluid freezes solid, 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). The NHTSA test report can be found in the docket.

Equistar believes that the noncompliance is inconsequential to motor vehicle safety and that no corrective action is warranted. Equistar states the following:

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 states 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.

Given the formation of crystals * * *, Equistar asked Case to perform further analysis on the tested retained sample to determine the temperature at which the crystals began to form. The * * * Case report on the crystals * * * indicates that these crystals, which were determined to be small in both size and number, formed at minus 49.9° C, which is within the temperature allowed by the relevant standard—plus or minus 2 degrees relative to minus 50° C. Thus, the results of this Case test on the retained sample do not constitute a failure of the required test in Equistar's view.

Equistar's petition, including the test data it submitted as attachments to its petition, can be found in the NHTSA docket.

Equistar states that “the crystals and globules” in the brake fluid “would not pose a threat to the operation of the brake fluid.” Equistar also asserts that the results may be due to “testing laboratories that calibrate their testing equipment in slightly different ways * * *” Equistar refers to two prior NHTSA grants of inconsequential noncompliance petitions which Equistar states involve “virtually identical circumstances involving brake fluid * * *” These are Dow Corning Corporation (59 FR 52582, October 18, 1994) and First Brands Corporation (59 FR 62776, December 6, 1994).

Interested persons are invited to submit written data, views, and arguments on the petition 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, 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 is granted or denied, notice of the decision will be published in the Federal Register pursuant to the authority indicated below.

Comment closing date: July 8, 2005.

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

Issued on: June 3, 2005.

Ronald L. Medford,

Senior Associate Administrator for Vehicle Safety.