Federal Register / Vol. 75, No. 22 / Wednesday, February 3, 2010 / Proposed Rules 5551 

Federalism (64 FR 43255, August 10, 

1999). 

F. Executive Order 13175 

This proposed rule would not have 

Tribal implications because it is not 

expected to have substantial direct 

effects on Indian Tribes. This proposed 

rule would not significantly or uniquely 

affect the communities of Indian Tribal 

governments, nor would it involve or 

impose any requirements that affect 

Indian Tribes. Accordingly, the 

requirements of Executive Order 13175, 

entitled Consultation and Coordination 

with Indian Tribal Governments (65 FR 

67249, November 9, 2000), do not apply 

to this proposed rule. 

G. Executive Order 13045 

This action is not subject to Executive 

Order 13045, entitled Protection of 

Children from Environmental Health 

Risks and Safety Risks (62 FR 19885, 

April 23, 1997), because this is not an 

economically significant regulatory 

action as defined by Executive Order 

12866, and this action does not address 

environmental health or safety risks 

disproportionately affecting children. 

H. Executive Order 13211 

This proposed rule is not subject to 

Executive Order 13211, entitled Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use (66 FR 28355, May 

22, 2001), because this action is not 

expected to affect energy supply, 

distribution, or use and because this 

action is not a significant regulatory 

action under Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

In addition, since this action does not 

involve any technical standards, section 

12(d) of the National Technology 

Transfer and Advancement Act of 1995 

(NTTAA), Public Law 104–113, section 

12(d) (15 U.S.C. 272 note), does not 

apply to this action. 

J. Executive Order 12898 

This action does not entail special 

considerations of environmental justice 

related issues as delineated by 

Executive Order 12898, entitled Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations (59 FR 7629, 

February 16, 1994). 

List of Subjects in 40 CFR Part 721 

Environmental protection, Chemicals, 

Hazardous substances, Reporting and 

recordkeeping requirements. 

Dated: January 27, 2010. 

Wendy C. Hamnett, 

Acting Director, Office of Pollution Prevention 

and Toxics. 

Therefore, it is proposed that 40 CFR 

part 721 be amended as follows: 

PART 721—[AMENDED] 

1. The authority citation for part 721 

would continue to read as follows: 

Authority: 15 U.S.C. 2604, 2607, and 

2625(c). 

2. Add § 721.10183 to subpart E to 

read as follows: 

§ 721.10183 Multi-walled carbon 

nanotubes (generic). 

(a) Chemical substance and 

significant new uses subject to reporting. 

(1) The chemical substance identified 

generically as multi-walled carbon 

nanotubes (PMN P–08–199) is subject to 

reporting under this section for the 

significant new uses described in 

paragraph (a)(2) of this section. 

(2) The significant new uses are: 

(i) Protection in the workplace. 

Requirements as specified in § 721.63 

(a)(1), (a)(2)(i), (a)(2)(ii), (a)(4), (a)(5) 

(National Institute for Occupational 

Safety and Health (NIOSH)-approved 

full-face respirators with N100 

cartridges), (a)(6)(i), and (c). 

(ii) Industrial, commercial, and 

consumer activities. Requirements as 

specified in § 721.80(j) (additive/filler 

for polymer composites and support 

media for industrial catalysts). 

(b) Specific requirements. The 

provisions of subpart A of this part 

apply to this section except as modified 

by this paragraph. 

(1) Recordkeeping. Recordkeeping 

requirements as specified in § 721.125 

(a), (b), (c), (d), and (i) are applicable to 

manufacturers, importers, and 

processors of this substance. 

(2) Limitations or revocation of 

certain notification requirements. The 

provisions of § 721.185 apply to this 

section. 

[FR Doc. 2010–2256 Filed 2–2–10; 8:45 am] 

BILLING CODE 6560–50–S 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 23 

[Docket No. OST–2010–0022] 

RIN 2105–AD88 

Participation by Disadvantaged 

Business Enterprises in Airport 

Concessions 

AGENCY: Office of the Secretary (OST), 

DOT. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of 

Transportation is proposing to remove 

the ‘‘sunset’’ provision from its rule 

governing the airport concessions 

disadvantaged business enterprise 

program. The rule would instead 

provide for periodic program reviews. In 

addition, in the interest of initiating a 

program review, the Department is 

soliciting comments on any changes that 

should be made in the rule. These 

comments would assist the Department 

in reviewing the rule and, if warranted, 

proposing modifications to it in the 

future. 

DATES: Comments on the proposal to 

remove the sunset provision must be 

received by March 5, 2010. Responses to 

the request for comments on potential 

modifications to the rule must be 

received by November 1, 2010. Latefiled comments will be considered to 

the extent practicable. 

ADDRESSES: You may submit comments 

(identified by the agency name and DOT 

Docket ID Number OST–2010–0022) by 

any of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and follow 

the online instructions for submitting 

comments. 

• Mail: Docket Management Facility: 

U.S. Department of Transportation, 1200 

New Jersey Avenue, SE., West Building 

Ground Floor, Room W12–140, 

Washington, DC 20590–0001. 

• Hand Delivery or Courier: West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue, SE., between 

9 a.m. and 5 p.m. ET, Monday through 

Friday, except Federal holidays. 

• Fax: 202–493–2251. 

Instructions: You must include the 

agency name (Office of the Secretary, 

DOT) and Docket number (OST–2010– 

0022) for this notice at the beginning of 

your comments. You should submit two 

copies of your comments if you submit 

them by mail or courier. Note that all 

comments received will be posted 

without change to http:// 

www.regulations.gov including any 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS

5552 Federal Register / Vol. 75, No. 22 / Wednesday, February 3, 2010 / Proposed Rules 

personal information provided and will 

be available to internet users. You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (65 FR 

19477) or you may visit http:// 

DocketsInfo.dot.gov. 

Docket: For internet access to the 

docket to read background documents 

and comments received, go to http:// 

www.regulations.gov. Background 

documents and comments received may 

also be viewed at the U.S. Department 

of Transportation, 1200 New Jersey Ave, 

SE., Docket Operations, M–30, West 

Building Ground Floor, Room W12–140, 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Robert C. Ashby, Deputy Assistant 

General Counsel for Regulation and 

Enforcement, U.S. Department of 

Transportation, 1200 New Jersey 

Avenue, SE., Washington, DC 20590, 

Room W94–302, 202–366–9310, 

bob.ashby@dot.gov. 

SUPPLEMENTARY INFORMATION: When the 

Department issued its final rule revising 

its ACDBE rule (49 CFR Part 23) in 

2005, the rule included at section 23.7 

a ‘‘sunset’’ provision. This provision said 

unless extended by the Department, the 

provisions of Part 23 would terminate 

and become inoperative on April 21, 

2010. The preamble to the rule 

explained the rationale for this 

provision as follows: 

The Department is introducing a ‘‘sunset’’ 

provision into the final rule as a way of 

addressing the durational element of narrow 

tailoring. A narrowly-tailored rule is not 

intended to remain in effect indefinitely. 

Rather, the rule should be reviewed 

periodically to ensure that it continues to be 

needed and that it remains a constitutionally 

appropriate way of implementing its 

objectives. Consequently, this provision 

states that this rule will terminate and cease 

being operative in five years, unless the 

Department extends it. We intend, beginning 

four years from now, to review the rule to 

determine whether it should be extended, 

modified, or allowed to expire. Of course, the 

underlying DBE statute remains in place, and 

its requirements continue to apply regardless 

of the status of this regulation, absent future 

Congressional action. (70 FR 14502; March 

22, 2005). 

The Department believes that it would 

be useful to begin reviewing the 

provisions of Part 23 at this time, for the 

purpose of determining what, if any, 

modifications, are appropriate to 

improve its operations, in context of the 

‘‘strict scrutiny’’ requirements of 

narrowly tailoring a program to meet a 

compelling need to combat 

discrimination and its effects. 

Consequently, with this notice, the 

Department is soliciting comments from 

interested parties concerning any and 

all changes to Part 23 they believe 

would be useful in helping the 

Department, airports, ACDBEs, and 

other airport-related businesses to 

achieve the ACDBE program’s 

objectives. The Department will use the 

information we receive to assist us in 

determining whether to issue a 

proposed rule to modify the ACDBE 

regulation. In addition, the Department 

is planning to meet with stakeholders, at 

times and places to be determined, to 

discuss potential changes to Part 23. 

However, the Department does not 

believe it is appropriate to retain the 

‘‘sunset’’ provision itself. The 

Department can, and will, review the 

provisions of the rule without this 

provision being in place. Moreover, as 

the preamble discussion for section 23.7 

itself pointed out, the ACDBE program 

is mandated by statute. The Department 

does not believe that it would be 

meaningful to eliminate a regulation 

when its underlying statutory mandate 

remains applicable to airports and other 

participants. Doing so would simply 

cause confusion and disruption, making 

it more difficult for all parties 

concerned to carry out their 

responsibilities under the statute, which 

is not self-executing. A regulatory 

framework is necessary for rational 

implementation of the statute. Periodic 

program reviews by the Department, as 

well as consideration from time to time 

of the continuing need for the program 

by Congress, meet the durational 

element of narrow tailoring 

satisfactorily. 

Moreover, the Department is 

convinced that programs like those in 

49 CFR part 23 and its companion DBE 

rule, 49 CFR part 26, remain necessary 

to redress discrimination and its effects 

in airport programs and to ensure a level 

playing field for small businesses 

owned and controlled by socially and 

economically disadvantaged 

individuals. The extensive evidence 

provided to a March 2009 hearing of the 

House Transportation and Infrastructure 

Committee on this subject, and the 

findings of continuing need for DBE 

programs in the House-passed version of 

the Federal Aviation Administration 

reauthorization bill (H.R. 915), as well 

as the Department’s long-term 

experience in operating the program, 

support this conclusion. 

For these reasons, the Department 

proposes to amend section 23.7 by 

removing the ‘‘sunset’’ language and 

substituting a requirement for program 

review. The current notice initiates such 

a review. The opportunity for 

stakeholder input and public comment 

is part of this review. The Department 

seeks comment on whether the final 

rule should state a specific interval for 

future program reviews or whether this 

determination should, as stated in the 

text of the proposed amendment to the 

rule, be left to the Department’s 

discretion. 

Regulatory Analyses and Notices 

Administrative Procedure Act 

Having considered the potentially 

high risk of disruption posed by the 

current ‘‘sunset’’ provision, the 

Department believes that the program 

review approach proposed by this 

NPRM provides a better way of 

achieving the objective of ensuring that 

the durational element of narrow 

tailoring is achieved. In order to ensure 

that all parties understand that the 

program and regulation will continue 

without interruption or uncertainty, the 

Department believes that it is important 

to propose removing the provision at 

this time and substituting the program 

review approach at this time. A short 

comment period is essential in order to 

permit a final rule to be issued before 

April 21, 2010. We also believe that 

beginning the program review now, 

rather than later, will serve the interests 

of the program and program participants 

well. 

Executive Order 12866 and Regulatory 

Flexibility Act 

The Department has determined that 

this action is not a significant regulatory 

action for purposes of Executive Order 

12866 or the Department’s regulatory 

policies and procedures. The rule would 

not impose any costs or burdens on 

grantees or other parties and would 

keep in place the opportunity for 

interested parties to participate in a 

program review. It makes no changes in 

the obligations of any party. For these 

reasons, the Department certifies that 

the rule would not have a significant 

economic impact on a substantial 

number of small entities. 

Paperwork Reduction Act 

This rule does not create any 

information collection requirements 

covered by the Paperwork Reduction 

Act. 

List of Subjects in 49 CFR Part 23 

Administrative practice and 

procedures, Airports, Civil rights, 

Government contracts, Grant 

programs—transportation, Minority 

business, Reporting and recordkeeping 

requirements. 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS

Federal Register / Vol. 75, No. 22 / Wednesday, February 3, 2010 / Proposed Rules 5553 

1 In the early 1980s, SAE added testing of EPDM 

rubber to SAE J1703, Motor Vehicle Brake Fluid, 

and SAE J1704, Borate Ether Based Brake Fluid. 

Issued at Washington, DC this 20th day of 

January 2010. 

Raymond F. LaHood, 

Secretary of Transportation. 

For reasons discussed in the 

preamble, the Department of 

Transportation proposes to amend Title 

49 of the Code of Federal Regulations, 

Part 23, as follows: 

PART 23—[AMENDED]

1. The authority citation for 49 CFR 

Part 23 continues to read as follows: 

Authority: 49 U.S.C. 47107; 42 U.S.C. 

2000d; 49 U.S.C. 322; Executive Order 12138. 

2. Section 23.7 is proposed to be 

revised to read as follows: 

§ 23.7 Program Reviews. 

In 2010, and thereafter at the 

discretion of the Secretary, the 

Department will initiate a review of the 

ACDBE program to determine what, if 

any, modifications should be made to 

this Part. 

[FR Doc. 2010–2293 Filed 2–2–10; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 571 

[Docket No. NHTSA–2010–0012 

RIN 2127–AK58 

Federal Motor Vehicle Safety 

Standards; Motor Vehicle Brake Fluids 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: This NPRM proposes to 

amend FMVSS No. 116, Motor Vehicle 

Brake Fluids, so that brake fluids would 

be tested with ethylene, propylene, and 

diene terpolymer (EPDM) rubber, as this 

type of rubber is increasingly being used 

in brake fluid seals. This NPRM also 

updates references to standards issued 

by the Society of Automotive Engineers 

(SAE) and the American Society for 

Materials and Testing (ASTM) (no 

substantive changes to the standard 

would be made by these updates), and 

corrects minor errors in the standard. 

DATES: Comments must be received on 

or before April 5, 2010. 

ADDRESSES: You may submit comments 

to the docket number identified in the 

heading of this document by any of the 

following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

• Mail: Docket Management Facility, 

M–30, U.S. Department of 

Transportation, West Building, Ground 

Floor, Rm. W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590. 

• Hand Delivery or Courier: West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue, SE., between 

9 a.m. and 5 p.m. Eastern Time, Monday 

through Friday, except Federal holidays. 

• Fax: (202) 493–2251. 

Regardless of how you submit your 

comments, you should mention the 

docket number of this document. 

You may call the Docket at 202–366– 

9324. 

Instructions: For detailed instructions 

on submitting comments and additional 

information on the rulemaking process, 

see the Public Participation heading of 

the SUPPLEMENTARY INFORMATION section 

of this document. Note that all 

comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal information provided. Please 

see the Privacy Act discussion below. 

Privacy Act: Anyone is able to search 

the electronic form of all comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (65 FR 

19477–78). 

FOR FURTHER INFORMATION CONTACT:

For non-legal issues: Mr. Samuel 

Daniel, Office of Crash Avoidance 

Standards, National Highway Traffic 

Safety Administration, 1200 New Jersey 

Avenue, SE., Washington, DC 20590 

(202–366–4921). Mr. Daniel’s fax 

number is: (202) 366–7002. 

For legal issues: Ms. Dorothy Nakama, 

Office of the Chief Counsel, National 

Highway Traffic Safety Administration, 

1200 New Jersey Avenue, SE., 

Washington, DC 20590 (202–366–2992). 

Ms. Nakama’s fax number is: (202) 366– 

3820. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. Testing With Ethylene, Propylene, and 

Diene Terpolymer Rubber 

III. Updating SAE Standard J1703 

IV. Updating American Society for Testing 

and Materials Standards 

V. Other Proposed Corrections and Updates 

to FMVSS No. 116 

VI. Effective Date 

VII. Rulemaking Analyses and Notices 

VIII. Public Participation 

I. Background 

Federal Motor Vehicle Safety 

Standard (FMVSS) No. 116, Motor 

Vehicle Brake Fluids (49 CFR 571.116), 

specifies requirements for fluids for use 

in hydraulic brake systems of motor 

vehicles, containers for these fluids, and 

labeling of the containers. The purpose 

of the standard is to reduce failures in 

the hydraulic braking systems of motor 

vehicles that may occur because of the 

manufacture or use of improper or 

contaminated fluid. FMVSS No. 116 

was developed from Society of 

Automotive Engineers (SAE) Standards 

J1703, J1704, and J1705, which address 

the performance requirements and test 

procedures for DOT3, DOT4, and DOT5 

brake fluid, respectively. FMVSS No. 

116 incorporates by reference or 

otherwise refers to particular editions 

(by date) of SAE J1703. FMVSS No. 116 

also references several standards 

published by the American Society for 

Testing and Materials (ASTM) relating 

to test procedures and devices. 

II. Testing With Ethylene, Propylene, 

and Diene Terpolymer Rubber 

This document proposes to update 

FMVSS No. 116 so that brake fluids 

would be tested with the materials 

currently used in the manufacture of 

brake fluid seals. Over the past two 

decades, the motor vehicle industry has 

increasingly gone from using styrenebutadiene rubber (SBR) for the brake 

system seals to ethylene, propylene, and 

diene terpolymer (EPDM)(as 

characterized by SAE J1703 AUG2008) 

rubber because EPDM rubber is more 

heat resistant and less expensive to 

manufacture. At present, FMVSS No. 

116 tests the effects of brake fluid on 

SBR, but not on EPDM rubber.1 In this 

NPRM, we propose to include the 

testing of brake fluid on EPDM rubber. 

The following amendments are 

proposed. 

a. Definition of ‘‘Brake Fluid’’ 

To apply FMVSS No. 116 to brake 

fluid that contacts EPDM rubber, we 

propose to expand the definition of 

‘‘brake fluid’’ at S4 of the standard to 

expressly state that ‘‘brake fluid’’ 

includes liquids that contact EPDM 

rubber in a hydraulic brake system. 

b. Corrosion Test 

The corrosion test in FMVSS No. 116 

(S5.1.6 and S6.6) evaluates the corrosive 

effects of brake fluid on several 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS