Intac Automotive Products, Inc.; Grant of Application for Decision That Noncompliance Is Inconsequential to Motor Vehicle Safety

Intac Automotive Products, Inc., (Intac) has determined that certain brake fluid containers manufactured by its supplier, Gold Eagle, are not in compliance with Federal Motor Vehicle Safety Standard (FMVSS) No. 116, “Motor Vehicle Brake Fluids”, and has filed appropriate reports pursuant to 49 CFR Part 573, “Defect and Noncompliance Reports.” Intac has also applied to be exempted from the notification and remedy requirements of 49 U.S.C. chapter 301—“Motor Vehicle Safety” on the basis that the noncompliance is inconsequential to motor vehicle safety.

Notice of receipt of the application was published, with a 30-day comment period, on February 18, 2000, in the Federal Register (65 FR 8472). NHTSA received no comments on this application.

Paragraph S5.2.2.2 of FMVSS No. 116 requires that certain information, including a serial number identifying the packaged lot and date of packaging specified in S5.2.2.2(d), be clearly marked on each brake fluid container or label permanently affixed to the container. Paragraph S5.2.2.2 further requires that this information be legible after being subjected to the test procedures in S6.14, Container information. S6.14 requires that each container be immersed in the same brake fluid contained therein for 15 minutes and dried within 5 minutes of its removal from the brake fluid.

Intac filed a Part 573 report informing the agency that, on November 4, 1997, it manufactured approximately 9,000 containers of brake fluid which it shipped to Petrochemical, Inc., for Mazda. On April 6, 1999, Intac manufactured approximately 30,500 containers of brake fluid which it shipped to Nissan and, on August 12, 1999, it manufactured approximately 16,800 containers of brake fluid which it shipped to Petrochemical, Inc., for Subaru. According to Intac, some of these brake fluid containers have labels that do not comply with the requirements of S5.2.2.2 of FMVSS No. 116. Additionally, to the best of Intac's knowledge, all of that company's brake fluid containers with labels that are potentially noncompliant with these requirements were manufactured on the aforementioned dates. For some of these containers, the packaged lot and date code information on the label (S5.2.2.2(d)) were not legible after the container was subjected to the test procedures in S6.14. The containers and labels were manufactured by the Gold Eagle Company, which also packaged the brake fluid in the containers under contract to Intac. Intac believes this noncompliance to be inconsequential to motor vehicle safety.

Intac supported its application for inconsequential noncompliance by stating that all the substantive safety warnings concerning proper storage and use of the contents of the referenced brake fluid containers were legible after durability testing in accordance with S6.14. Intac also stated that the purpose of the serial number identifying the packaged lot and date of packaging is to facilitate determination of the extent of defective brake fluid should such be discovered. According to Intac, there is no serious risk to motor vehicle safety if the packaged lot and date information is lost. If packaged lot and date information were not visible on container labels, and defective brake fluid was suspected, the manufacturer would have to recall a larger number of containers than the number of the containers that would be recalled if this information was available. Intac informed the agency that the company has not manufactured brake fluid that has been determined to be in noncompliance with the brake fluid performance requirements in FMVSS No. 116, nor has the company manufactured brake fluid that has been recalled because of a safety defect.

Intac also stated that the containers of brake fluid in question were sold to Nissan and Petrochemical, Inc. The containers sold to Petrochemical were distributed to Mazda and Subaru. The product sold to Nissan and Petrochemical was distributed to dealerships and authorized repair facilities and it is unlikely that private consumers obtained these products through retail outlets for personal use.

According to Intac, the dealerships and authorized repair facilities that received the brake fluid tend to consume the product quickly once the containers are opened. Therefore, there was little likelihood that the lot and date information on the container label would become illegible through contact with brake fluid before the contents of a container was used.

Intac further stated that it was able to secure most of the noncompliant inventory after contacting Nissan and Petrochemical, Inc., so that most of the noncompliant brake fluid containers would be returned to Intac for correction.

The agency believes that the true measure of inconsequentiality to motor vehicle safety in this case is the effect of the noncompliance on the safety related information provided on the brake fluid container label. According to Intac, all substantive information regarding the safe use of the contents of the brake fluid containers was legible on the labels after testing in accordance with S6.14, and the brake fluid packaged in these containers complies with all relevant FMVSS No. 116 performance requirements. The primary purpose of the packaged lot and date code is to identify brake fluid that may not comply with the performance requirements of FMVSS No. 116 so as to facilitate a recall campaign. Intac has agreed that a campaign to recall noncompliant brake fluid would include all containers with illegible packaged lot and date codes in addition to the containers with relevant legible packaged lot and date code information. Accordingly, a container label with illegible packaged lot and date information would not have a consequential effect on motor vehicle safety. Additionally, Intac stated that it has not produced brake fluid that does not meet the performance requirements in FMVSS No. 116, nor has any of its brake fluid been recalled because of a safety defect. Intac further stated that most of the containers manufactured with potentially noncompliant warning labels were retrieved from Petrochemical, Inc. and Nissan prior to use.

Intac has reviewed the brake fluid container manufacturing process, determined the cause of this noncompliance, and modified the process to eliminate this noncompliance in the future.

In consideration of the foregoing, NHTSA has decided that the applicant has met its burden of persuasion that the noncompliance it describes is inconsequential to safety. Accordingly, its application is granted, and the applicant is exempted from providing the notification of the noncompliance that would be required by 49 U.S.C. 30118, and from remedying the noncompliance, as would be required by 49 U.S.C. 30120.

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