First Brands Corporation, Grant Of Petition For Determination Of Inconsequential Noncompliance

DEPARTMENT OF TRANSPORTATION

[Docket No. 94-22; Notice 2]

First Brands Corporation, Grant Of Petition For Determination Of

Inconsequential Noncompliance

First Brands Corporation (FBC) of Danbury, Connecticut determined

that some of its brake fluid failed to comply with 49 CFR 571.116,

Federal Motor Vehicle Safety Standard No. 116, ``Motor Vehicle Brake

Fluids,'' and filed an appropriate report pursuant to 49 CFR Part 573.

FBC also petitioned to be exempted from the notification and remedy

requirements of the National Traffic and Motor Vehicle Safety Act (15

U.S.C. 1381 et seq.) (now 49 U.S.C. 30118 and 30120) on the basis that

the noncompliance is inconsequential as it relates to motor vehicle

safety.

Notice of receipt of the petition was published on April 7, 1994,

under the designation of Docket No. 94-19, and an opportunity afforded

for comment (59 FR 16685). On April 26, 1994, the docket was

redesignated 94-22 (59 FR 21800). This notice grants the petition.

Paragraph S5.1.7, Fluidity and Appearance at Low Temperature, of

Standard No. 116 states:

When brake fluid is tested according to S6.7, at the storage

temperature and for the storage times given in Table II--

(a) The fluid shall show no sludging, sedimentation,

crystallization, or stratification;

(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 the

bubble flow times shown in Table II; and

(c) On warming to room temperature, the fluid shall resume the

appearance and fluidity that it had before chilling.

Table II of S5.1.7 states that when the brake fluid is stored at

-40 deg. 2 deg. C. for 144 hours 4.0 hours,

the maximum bubble flow time is 10 seconds. When stored at -50 deg.

2 deg. C. for 6 hours 0.2 hours, the maximum

bubble flow time is 35 seconds.

NHTSA notified FBC that a sample of Prestone Brake Fluid, AS-400,

failed to meet the no-crystallization requirements of S5.1.7 (NHTSA

file NCI 3293). FBC's initial investigation determined that the brake

fluid was packaged on May 4, 1993, at its subsidiary, Paulsboro

Packaging, Inc., and that the fluid was manufactured by Union Carbide

Corporation (UCC) and identified as UCC's PM6060, lot # 0319083. FBC

further stated:

All [of the] product in FBC's distribution system packaged from the

specific lot # 0319083 was placed on hold and all packaging of Brake

Fluid PM6060 was ceased pending a full investigation and implementation

of corrective measures.

FBC produced 202,704 units (12.0 fl.oz.) from lot # 0319083, and

currently has 61,752 units on hold at various warehouses.

Based on review of all data and consultation with UCC, it is FBC's

opinion that the noncompliance will not affect product performance in a

motor vehicle or create a safety concern.

FBC is recommending that no recall of [the] product outside of

FBC's distribution system be made. It is further recommended that the

product in inventory (61,752 units) also be released for sale.

FBC also stated that it has elected to convert to an alternative

UCC brake fluid identified as PM6340, which has a freeze point of

-65 deg. C., and will provide an added margin to meet the requirements

of S5.1.7, Standard No. 116.

In support of its petition, FBC attached a letter from UCC, dated

January 17, 1994. The UCC letter describes the results of tests it

performed on samples of the noncompliant brake fluid:

Specifically with regard to the DOT ``Fluidity and Appearance at

Low Temperature'' test (FMVSS 116, Section 5.1.7), Union Carbide

Corporation, using the DOT FMVSS 116 procedure, performed the test at

-40 deg. C for 6 days [144 hours] and -50 deg. C for 6 hours. Following

completion of the tests:

at -40 deg. C for 6 days, the sample passed all requirements. The

sample met the requirements for appearance at low temperature, bubble

travel time and room temperature appearance-fluidity properties.

-at -50 deg. C for 6 hours, the sample passed the requirements of

bubble travel time and room temperature appearance-fluidity properties.

Upon completion of the 6 hours at -50 deg. C, some crystallization was

noted in the sample.

--attempts were made to isolate the crystallized material. It was a

soft, non-abrasive gel that was difficult to isolate as it flowed with

the brake fluid.

Union Carbide Corporation also conducted the test of FMVSS 116,

Section 5.1.7 on the sample with rigorous temperature control at

-49 deg. C 2 deg. C to more closely realize the -48 deg. C

limit of the test's specified temperature range (Section 5.1.7 test

parameter: -50 deg. C plus-minuss> 2 deg. C). The sample was

clear, showed no crystals, had a bubble travel time of approximately 5

seconds and regained its appearance and fluidity at room temperature.

These results were confirmed by a second run at the same conditions.

The Pour Point of the sample was measured according to the method

of ASTM D97. [The] lowest temperature at which movement in the liquid

could be observed was determined to be -62 deg.C.

From the results obtained and observations made, we are confident

that this brake fluid will perform and provide braking under the low

temperature conditions of the FMVSS 116 standard, section 5.1.7 and

offer the following reasons in support of this:

--The fluid passed the -40 deg.C/6 day fluidity and appearance test.

--The fluid showed appropriate viscosity at low temperature (-40

deg.C).

--The fluid showed appropriate viscosity at -50 deg.C (bubble travel

time of [approximately] 5 seconds against a requirement of 35 seconds

[maximum]).

--Any crystallization observed was a soft, non-abrasive gel that flowed

with the brake fluid. Further, the phenomenon is fully reversible.

--The Pour Point of the sample was measured as -62 deg.C.

No comments were received on the petition.

The agency has reviewed FBC's petition and supporting data. In two

of UCC's low temperature tests of the noncompliant fluid there was no

crystallization; however, in another test, five crystals were formed.

The crystallization was described as ``a soft non-abrasive gel.'' As

such, it appears similar to the ``slush-like crystallization'' which

occurred in Dow Corning's fluid. As Dow Corning persuasively argued,

this type of crystallization will readily disperse under slight

agitation or warming and will not adversely affect brake system

performance. In contrast are crystals that are either water-based ice,

abrasive, or have the potential to clog brake system components. NHTSA

accepted the distinction and granted the petition (59 FR 52582). In its

view, the same conclusion is sustainable in this case.

In consideration of the foregoing, the Administrator has decided

that FBC has met its burden of persuasion and that the noncompliance

with Standard No. 116 herein described is inconsequential to motor

vehicle safety. Accordingly, the Administrator exempts FBC from the

notification requirements of 49 U.S.C. 30118 and the remedy

requirements of 49 U.S.C. 30120. However, granting of FBC's petition

does not constitute an exemption from 49 U.S.C. 30112(a), the

prohibition against offering for sale, selling, and introducing into

interstate commerce motor vehicle equipment that does not meet all

applicable Federal motor vehicle safety standards. Thus, FBC cannot

release the 61,752 units in inventory for sale in the United States,

and must dispose of the noncompliant fluid in a manner that does not

violate 49 U.S.C. 30112(a).

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

49 CFR 501.8).

Issued on: November 30, 1994.

Barry Felrice,

Associate Administrator for Rulemaking.

[FR Doc. 94-29883 Filed 12-5-94; 8:45 am]

BILLING CODE 4910-59-P