04-19806. CCI Manufacturing IL Corporation, Receipt of Petition for Decision of Inconsequential Noncompliance

CCI Manufacturing IL Corporation (CCI) has determined that certain brake fluid containers manufactured by its supplier, Gold Eagle, do not comply with S5.2.2.2(d) of 49 CFR 571.116, Federal Motor Vehicle Safety Standard (FMVSS) No. 116, “Motor vehicle brake fluids.” CCI 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), CCI 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 CCI'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 21,204 units of brake fluid containers manufactured in March 2004. S5.2.2.2 of FMVSS No. 116 requires that:

Each packager of brake fluid shall furnish the information specified in [paragraph d] of this S5.2.2.2 by clearly marking it on each brake fluid container or on a label (labels) permanently affixed to the container * * *. After being subjected to the operations and conditions specified in S6.14, the information required by this section shall be legible * * *.

The information specified in paragraph d of S5.2.2.2 is “[a] serial number identifying the package lot and date of packaging.” With regard to the noncompliant brake fluid containers, the lot and date codes required by S5.2.2.2(d) are not legible after the containers are subjected to the test conditions of S6.14.

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

NHTSA has identified only one purpose for [the lot and date code] marking: namely, “to facilitate determination of the extent of defective brake fluid should such be discovered.” * * * While it is clearly in the manufacturer's interest to be able to limit the “extent of defective brake fluid should such be discovered,” by reference to lot/date code markings, there is no serious risk to motor vehicle safety if that information is lost. Instead, in the event of a defect or noncompliance determination affecting certain batches of brake fluid, the brake fluid manufacturer would be compelled to recall a larger population of brake fluid containers than it otherwise would need to do, because it could not rely on the presence of a legible lot/date code marking to limit the population of the recall.

CCI explains that it sold the affected brake fluid only to Mercedes-Benz, who then distributed it to its dealerships and authorized repair facilities. CCI states:

First, Mercedes-Benz purchases and distributes the brake fluid to its dealerships and authorized repair facilities in bulk quantities, and those products are used quickly. Even in the unlikely event that a dealership or repair facility could not read the lot/date code on a particular container of brake fluid, that entity would likely have other containers from the same lot/date code on its premises, and could ascertain the lot/date code for the fouled container from its companion products. Second, CCI believes that all of the noncompliant containers in Mercedes-Benz's inventory may already have been used.

CCI does not believe Mercedes-Benz offers the brake fluid for retail sale to customers, however it cannot be certain.

CCI states that the brake fluid containers comply with all other requirements of FMVSS No. 116 and the brake fluid itself complies with the substantive performance requirements of FMVSS No. 116. CCI indicates that it has corrected the problem.

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: September 30, 2004.

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

Issued on: August 25, 2004.

Kenneth N. Weinstein,

Associate Administrator for Enforcement.