Dow Corning Corporation; Grant of Petition for Determination of Inconsequential Noncompliance Publication: Federal Register Agency: National Highway Traffic Safety Administration Byline: Barry Felrice Date: 18 October 1994 Subject: American Government • Safety

[Federal Register Volume 59, Number 200 (Tuesday, October 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25779]


[[Page Unknown]]

[Federal Register: October 18, 1994]


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DEPARTMENT OF TRANSPORTATION
[Docket No. 94-18; Notice 2]

 

Dow Corning Corporation; Grant of Petition for Determination of 
Inconsequential Noncompliance

    Dow Corning Corporation (Dow) of Midland, Michigan determined that 
some of its brake fluid failed to comply with the requirements of 49 
CFR 571.116, Motor Vehicle Safety Standard No. 116, Hydraulic Brake 
Fluids, and filed an appropriate report pursuant to 49 CFR part 573, 
``Defect and Noncompliance Reports.'' Dow 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 was 
inconsequential as it relates to motor vehicle safety.
    Notice of receipt of the petition was published on March 23, 1994, 
and an opportunity afforded for comment (59 FR 13761). This notice 
grants the petition.
    Paragraph S5.1.9, Water Tolerance, of Standard No. 116 states that:

    At low temperature, after humidification, ``(1) The [brake] 
fluid shall show no slugging, sedimentation, crystallization, or 
stratification; (2) Upon inversion of the centrifuge tube, the air 
bubble shall travel to the top of the fluid in not more than 10 
seconds; (3) If cloudiness has developed, the wet fluid shall regain 
its original clarity and fluidity when warmed to room temperature.''

    Between September 4, 1992, and October 29, 1993, Dow produced and 
sold 11 lots of DOT 5 silicone base brake fluid (SBBF) that do not 
comply with Paragraph S5.1.9. These 11 lots were broken down into 191 
55 gallon drums, 1,112 one gallon retail packages, 11,458 one quart 
retail packages, and 33,091 12 ounce retail packages.
    At some point near the end of the low temperature portion of the 
water tolerance test, these lots contained a very small amount of a 
soft, slush-like crystallization. The crystallization usually formed 
around the top of the specimen, where the SBBF met the vial headspace. 
The smallest amount of warming made the crystallization flow back into 
a liquid state.
    Dow supported its petition for inconsequential noncompliance with 
the following:

    First, the low temperature portion of the water tolerance test 
was designed to [simulate] excessive water in non-SBBF brake fluids. 
But as applied to SBBF, the humidification step results in a water 
content level for test samples that is nearly double that of in-
service SBBF. SBBF test samples clearly do not accurately represent 
in-service SBBF. [Dow believes] this built-in error results in 
unrealistic and excess water. During this portion of the test, that 
excess water becomes a seed for crystallization of the SBBF itself. 
Without the humidification step, SBBF does not crystallize.
    Second, the soft, slush-like crystals are identical to the 
liquid SBBF; that is, 20 centistoke polydimethylsiloxane, some 
organic additives, and 350-400 [parts per million (ppm)] water. The 
SBBF crystals should not be considered as water-based ``ice'' 
crystals. These SBBF crystals do not exhibit any of the negative 
safety impacts that result from ice formation.

    Dow also submitted the following additional material: (1) a 1982 
petition for rulemaking it filed to amend this portion of the standard; 
(2) data to support this petition; (3) test data showing that the 
subject SBBF would pass the requirements of S5.1.9 when the 
humidification step is eliminated; and, (4) a statement by Ron 
Tecklenberg, Ph.D, a Dow chemist, supporting Dow's petition. This 
additional material was made available for review in the NHTSA Docket 
Section.
    One comment was received on the petition, from Harley-Davidson, 
Inc., which supported it.
    Although Standard No. 116 clearly forbids ``crystallization'' at 
the end of the low temperature portion of the water tolerance test, Dow 
has argued that the slush-like crystallization which it experienced 
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 accepts this distinction and 
concurs in the conclusion that the crystallization that occurred ought 
not to have an adverse effect upon braking.
    In consideration of the foregoing, it is hereby decided that Dow 
has met its burden of persuasion and that the noncompliance with 
paragraph S5.1.9 of 571.116 Motor Vehicle Safety Standard No. 116 Brake 
Fluids is inconsequential to motor vehicle safety. Accordingly, Dow is 
exempted from the notification requirements of 49 U.S.C. 30118 and the 
remedy requirements of 49 U.S.C. 30120.

(49 U.S.C. 30118, 30120; delegations of authority at 49 CFR 1.50 and 
NHTSA Order 800-2)

    Issued on: October 12, 1994.
Barry Felrice,
Associate Administrator for Rulemaking.
[FR Doc. 94-25779 Filed 10-17-94; 8:45 am]
BILLING CODE 4910-59-P