E9-7904. Disadvantaged Business Enterprise; Overall Goal Schedule and Substitution

AGENCY:

Office of the Secretary (OST), DOT.

ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

This notice of proposed rulemaking (NPRM) would propose to improve administration of the Disadvantaged Business Enterprise (DBE) program by calling upon recipients of DOT financial assistance to transmit overall goals to the Department for approval every three years, rather than annually.

DATES:

Comments on this proposed rule must be received by July 7, 2009.

ADDRESSES:

You may submit comments (identified by the agency name and DOT Docket ID Number OST-2009- ) by any of the following methods:

• Federal eRulemaking Portal: Go to 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: [phone].

Instructions: You must include the agency name (Office of the Secretary, DOT) and Docket number (OST-2009- ) 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 www.regulations.gov including any 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 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, [e-mail].

SUPPLEMENTARY INFORMATION:

The current DBE rule (49 CFR part 26) requires recipients to submit overall goals for review by the applicable DOT operating administration on August 1 of each year. The process of setting annual overall goals can be time-consuming, particularly given the requirements for public participation by the recipient. The Department's experience has been that many goals are submitted after the August 1 date, and the Department's workload involved in reviewing annual goals from 52 state departments of transportation and hundreds of transit authorities and airports has often resulted in delays in the Department's response to recipients' submissions.

In the Department's 2005 airport concessions disadvantaged business enterprise (ACDBE) regulation (49 CFR part 23), the Department established a staggered three-year schedule for the submission by airports of ACDBE goals. The purpose of this provision was to better manage the workloads of both airports and the Federal Aviation Administration (FAA). This approach appears to have been successful in achieving that objective, and we are now proposing to establish a similar system for Part 26 DBE goals. We seek comment on whether such a system should, like its Part 23 counterpart, permit operating administrations to grant program waivers for different schedules that recipients suggest.

Under the proposal, each Part 26 recipient would submit an overall goal every three years, based on a schedule established by the operating administrations. Some recipients would submit a goal in August 2009, as per the existing requirement. Others would not submit an overall goal until August 2010, and others not until August 2011. With respect to airports, FAA would arrange the schedule so that an airport would not have to submit both a Part 23 and Part 26 goal in the same year. The Department seeks comment on the concept of submitting DBE goals every three years as well as the proposed schedules for submission. We also seek comment on whether the rule should provide for annual reviews of goals or adjustments for new opportunities, similar to what is provided in section 23.45 of the airport concessions DBE rule.

Regulatory Analyses and Notices

The Department has determined that this action is not considered a significant regulatory action for purposes of Executive Order 12866 or the Department's regulatory policies and procedures. The NPRM would ease administrative burdens on recipients by reducing the frequency of overall goal submissions and would improve protections for DBE subcontractors by requiring recipient approval of certain contracting actions.

The NPRM would affect some small entities, easing administrative burdens related to goal submission on any recipients that are considered small entities and enhancing contracting process protections for DBEs, which are small entities. However, the economic effects of these changes on small entities are negligible. For that reason, the Department certifies that the NPRM, if made final, would not have a significant economic impact on a substantial number of small entities.

The Department has analyzed this proposed action in accordance with the principles and criteria contained in Executive Order 13132, and has determined that the proposed amendments are consistent with the Executive Order and that no consultation is necessary. This NPRM does not propose information collection requirements covered by the Paperwork Reduction Act.

List of Subjects in 49 CFR Part 26

• Administrative practice and procedures
• Airports
• Civil rights
• Government contracts
• Grant programs—transportation
• Highways and roads
• Mass transportation
• Minority business
• Reporting and recordkeeping requirements

Issued at Washington DC this 25th day of March 2009.

Ray 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 26, as follows:

1. The authority citation for 49 CFR part 26 is amended to read as follows:

Authority: 23 U.S.C. 324; 42 U.S.C. 2000d et seq.; 49 U.S.C. 1615, 47107, 47113, 47123; Public Law 105-59, sec. 1101(b).

2. Revise § 26.45(f)(1) to read as follows:

§ 26.45

How do recipients set overall goals?

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(f)(1) If you set overall goals on a fiscal year basis, you must submit them to the applicable DOT operating administration by August 1 at three-year intervals, based on a schedule established by the FAA, FTA, or FHWA, as applicable, and posted on that agency's Web site.

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