Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Notices 48579 

of the functions of the Department, 

including whether the information will 

have practical utility; the accuracy of 

the Department’s estimates of the 

burden of the proposed information 

collection; ways to enhance the quality, 

utility, and clarity of the information to 

be collected; and ways to minimize the 

burden of the collection of information 

on respondents, including the use of 

automated collection techniques or 

other forms of information technology. 

Issued in Washington, DC, on August 14, 

2006. 

Carla Mauney, 

FAA Information Collection Clearance 

Officer, Information Systems and Technology 

Services Staff, ABA–20. 

[FR Doc. 06–7064 Filed 8–18–06; 8:45 am] 

BILLING CODE 4910–13–M 

DEPARTMENT OF TRANSPORTATION 

Federal Transit Administration 

[Docket No. FTA–2006–24063] 

Disadvantaged Business Enterprises; 

Western States Guidance for Public 

Transportation Providers 

AGENCY: Federal Transit Administration 

(FTA), DOT. 

ACTION: Notice of availability and policy 

guidance. 

SUMMARY: This notice announces the 

Federal Transit Administration’s (FTA) 

implementation of Department of 

Transportation guidance for participants 

of the Disadvantaged Business 

Enterprise (DBE) program. This notice 

solely concerns FTA implementation 

procedures applicable to FTA grantees 

in the states comprising the 9th Federal 

Judicial Circuit (California, Oregon, 

Washington, Alaska, Arizona, Idaho, 

Montana, Nevada, and Hawaii). 

DATES: Effective Date: This policy takes 

effect on August 21, 2006. 

FOR FURTHER INFORMATION CONTACT: 

Scheryl Portee, Attorney Advisor, Office 

of the Chief Counsel, (202) 366–4011 

(telephone) and (202) 366–3809 (fax). 

SUPPLEMENTARY INFORMATION: 

1. Availability of the DOT Guidance 

and Comments 

A copy of the Department of 

Transportation Guidance for 

participants of the Disadvantaged 

Business Enterprise (DBE) program in 

the affected States and comments 

received from the public are available 

for inspection or copying at the Docket 

Management Facility, U.S. Department 

of Transportation, Room PL–401 on the 

plaza level of the Nassif Building, 400 

Seventh Street, SW., Washington, DC 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

You may retrieve the guidance and 

comments online through the Document 

Management System (DMS) at: http:// 

dms.dot.gov. Enter the docket number 

24063 in the search field. The DMS is 

available 24 hours each day, 365 days 

each year. Electronic submission and 

retrieval help and guidelines are 

available under the help section of the 

Web site. An electronic copy of the 

document may also be downloaded by 

using a computer, modem and suitable 

communications software from the 

Government Printing Office’s Electronic 

Bulletin Board Service at (202) 512–

1661. Internet users may also reach the 

Office of the Federal Register’s home 

page at: http://www.nara.gov/fedreg and 

the Government Printing Office’s Web 

page at: http://www.gpoaccess.gov/fr/ 

index.html. 

2. Background 

The General Counsel of the 

Department of Transportation issued 

guidance concerning the effects of the 

Western States Paving Co. v. United 

States and Washington State 

Department of Transportation, 407 F. 3d 

983 (9th Cir. 2005) in January 2006. On 

March 23, 2006, FTA published a 

Federal Register notice requesting 

comments on its implementation of the 

Department’s guidance (56 FR 14775). 

The guidance applies to recipients of 

Federal funds authorized under chapter 

53 of Title 49 of the United States Code 

that are located within the states of 

Alaska, Arizona, California, Hawaii, 

Idaho, Montana, Nevada, Oregon, and 

Washington. 

The Court of Appeals for the 9th 

Circuit, like other Federal courts that 

have reviewed the Department of 

Transportation’s DBE program, held that 

49 CFR part 26 and the authorizing 

statute for the DBE program in TEA–21 

were constitutional. The court affirmed 

that Congress had determined that there 

was a compelling need for the DBE 

program and part 26 was narrowly 

tailored. However, the 9th Circuit 

opinion held that the Washington State 

Department of Transportation’s program 

for implementing part 26 was not 

narrowly tailored because the State’s 

evidence of discrimination supporting 

the use of race conscious measures in 

the program was inadequate. The 

January 2006 DOT guidance provides 

information to recipients in the 9th 

Circuit about how to address the 

implications of the court’s decision in 

their programs. This document provides 

further information on how FTA will 

administer the DBE program for FTA 

recipients in light of the court decision 

and the DOT guidance. 

3. Response to Comments 

This notice responds to comments 

regarding the procedures that FTA will 

employ in its review process for overall 

goal submissions from grantees in 9th 

Circuit States for Fiscal Year 2006 (that 

were due August 1, 2005) and 

subsequent-year submissions. These 

procedures concern such matters as 

race-neutral submissions, the evidence 

gathering process to determine evidence 

of discrimination or its effects in 

grantees’ markets, and action plans for 

disparity/availability studies or other 

appropriate evidence gathering 

processes. 

FTA solicited comments on two 

transit-specific issues. FTA considered 

all comments and statements filed that 

pertained to these two issues. FTA 

responses to these comments are 

included in this section. There is no 

discussion by FTA of comments that 

addressed Department-wide DBE issues, 

the content of the January 2006 DOT 

guidance, or statutory requirements. 

These issues were beyond the scope of 

the FTA notice. FTA received 10 

comments in response to the two 

transit-specific issues we raised. The 

breakdown among commenter 

categories follows: 

• Nonprofits and special transit 

providers: 1. 

• City and County transit providers: 

8. 

• Trade association: 1. 

Issues 

1. Commitment To Conduct Disparity 

Studies 

On the two matters posed for 

comment regarding FTA’s 

implementation of the Western States 

guidance, there were limited comments 

on the first issue, that FTA may require 

recipients to certify that they will 

conduct or participate in a disparity or 

availability study. Those that did 

respond expressed concern that the 

Regional Civil Rights Office may require 

this certification. 

FTA Response: DBE compliance is a 

condition of the FTA Master Agreement 

for all applicable recipients. The 

Regional Civil Rights Officer, in its 

review of DBE goal submissions, will 

work with grantees. In some cases, this 

will result in grantees having to commit 

to conducting disparity studies or 

similar evidence gathering efforts. 

The Department’s Guidance explicitly 

states that if a recipient does not 

currently have sufficient evidence of 

discrimination or its effects, then an all 


hsrobinson on PROD1PC72 with NOTICES
48580 Federal Register / Vol. 71, No. 161 / Monday, August 21, 2006 / Notices 

race-neutral overall goal for Fiscal Year 

2006 would be submitted, along with a 

statement concerning the absence of 

adequate evidence and a description of 

plans to conduct a study or other 

appropriate evidence gathering process, 

an action plan, and time lines for its 

completion. The Regional Civil Rights 

Office review of the annual goal 

submissions will determine whether 

evidence of discrimination or its effects 

has been provided. 

Under part 26, any recipient, 

wherever located, would submit an all 

race-neutral overall goal if it concluded, 

based on the information used in the 

goal-setting process, that it could meet 

its overall goal without any use of race 

conscious measures like contract goals. 

If a recipient in the 9th Circuit presents 

an analysis making this showing, then 

the recipient need not submit an action 

plan for conducting a disparity study or 

similar evidence gathering effort. 

However, if a 9th Circuit recipient’s Part 

26 goal-setting analysis concludes that 

race conscious measures would be 

necessary to meet part of its overall goal 

and that the recipient does not have 

sufficient evidence to meet the 

requirements of the Western States 

decision, the recipient would submit a 

race-neutral overall goal and an action 

plan for a disparity study or similar 

evidence gathering effort. In some cases, 

it may be necessary for grantees who 

have already submitted Fiscal Year 2006 

goals to rework their submissions to 

address these matters. 

2. Costs of Disparity Studies 

A common thread was noted in 

comments responding to the second 

issue concerning funding of disparity 

studies. Commenters stated that 

additional targeted funding for disparity 

studies is needed to avoid reducing the 

current pressing service-related needs. 

Commenters also noted the financial 

limitations of small transit operators 

with respect to conducting such studies. 

FTA Response: FTA is aware of the 

costs involved in conducting disparity 

studies or availability studies. For 

recipients in the 9th Circuit states 

whose goal-setting processes would lead 

to the use of race conscious means, but 

for the effects of the Western States 

decision, a disparity study or similar 

evidence gathering effort is essential, 

and consistent with DOT’s guidance, is 

a condition of FTA’s approval of a raceneutral overall goal. As noted in the 

General Counsel’s DBE guidance, 

funding of disparity studies is 

reimbursable from Federal program 

funds, subject to the availability of those 

funds and under the FTA statute, this is 

an eligible capital expense. Recipients 

that propose to undertake a study may 

wish to consider joint studies within 

their locale or participate in studies that 

will be undertaken by other transit 

properties in the local market. The 

Regional Civil Rights Office will review 

the overall goal submissions and work 

with recipients to respond to local 

circumstances and to achieve 

compliance with the overall objectives 

of the DBE program. 

FTA also suggests that recipients 

communicate with the State DOT to 

determine what preparations are being 

undertaken for a statewide study and 

whether participation in the study is 

feasible. Per the guidance, this is 

occurring and some recipients are 

complying with the guidance by 

submission of a race-neutral overall goal 

and participation in studies currently 

underway rather than conducting their 

own study. 

3. Group-Specific Goals 

One commenter asked about an 

apparent inconsistency between Part 26 

and the DOT guidance concerning 

group-specific goals. 

FTA Response: Part 26 prohibits 

group-specific goals. Following the 

completion of a disparity study, a 

recipient might conclude that it had 

evidence of discrimination with respect 

to some, of the groups presumed to be 

disadvantaged under the rule. In such a 

case, the recipient should apply for a 

program waiver under § 26.15 of the 

rule. This opportunity is not limited to 

recipients in the 9th Circuit or to FTA 

grantees. For example, Colorado DOT 

applied for and was granted such a 

waiver on the basis of its disparity study 

for its Fiscal Year 2000 overall goal. 

FTA will continue to work with 

recipients in the 9th Circuit to meet the 

requirements of a ‘‘narrowly tailored’’

DBE program in light of the recent 

developments in case law. 

Dated: August 15, 2006. 

Sandra K. Bushue, 

Deputy Administrator. 

[FR Doc. 06–7053 Filed 8–18–06; 8:45 am] 

BILLING CODE 4910–57–M 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

[Docket No. NHTSA 2006–24928; Notice 2] 

Continental Tire North America, Grant 

of Petition for Decision of 

Inconsequential Noncompliance 

Continental Tire North America 

(Continental) has determined that 

certain tires it produced in 2004 and 

2005 do not comply with S5.5(f) of 49 

CFR 571.139, Federal Motor Vehicle 

Safety Standard (FMVSS) No. 139, 

‘‘New pneumatic radial tires for light 

vehicles.’’ Pursuant to 49 U.S.C. 

30118(d) and 30120(h), Continental has 

petitioned for a determination that this 

noncompliance is inconsequential to 

motor vehicle safety and has filed an 

appropriate report pursuant to 49 CFR 

part 573, ‘‘Defect and Noncompliance 

Reports.’’ Notice of receipt of a petition 

was published, with a 30-day comment 

period, on June 14, 2006, in the Federal 

Register (71 FR 34414). NHTSA 

received no comments. 

Affected are a total of approximately 

2,627 model 235/55R17 99H Conti Pro 

Contact replacement tires manufactured 

during 2004 and 2005. S5.5(f) of FMVSS 

No. 139 requires the actual number of 

plies in the tread area to be molded on 

both sidewalls of each tire. The 

noncompliant tires are marked on the 

sidewall ‘‘Tread Plies 1 Rayon + 2 Steel 

+ 2 Nylon’’ whereas the correct marking 

should be ‘‘Tread Plies 1 Rayon + 2 

Steel + 1 Nylon.’’ Continental has 

corrected the problem that caused these 

errors so that they will not be repeated 

in future production. 

Continental Tire believes that the 

noncompliance is inconsequential to 

motor vehicle safety and that no 

corrective action is warranted. 

Continental Tire states, 

All other sidewall identification markings 

and safety information are correct. This 

noncompliant sidewall marking does not 

affect the safety, performance and durability 

of the tire; the tires were built as designed. 

The Transportation Recall, 

Enhancement, Accountability, and 

Documentation (TREAD) Act (Pub. L. 

106–414) required, among other things, 

that the agency initiate rulemaking to 

improve tire label information. In 

response, the agency published an 

Advance Notice of Proposed 

Rulemaking (ANPRM) in the Federal 

Register on December 1, 2000 (65 FR 

75222). 

The agency received more than 20 

comments on the tire labeling 

information required by 49 CFR 571.109 

and 119, part 567, part 574, and part 

575. In addition, the agency conducted 

a series of focus groups, as required by 

the TREAD Act, to examine consumer 

perceptions and understanding of tire 

labeling. Few of the focus group 

participants had knowledge of tire 

labeling beyond the tire brand name, 

tire size, and tire pressure. 

Based on the information obtained 

from comments to the ANPRM and the 

consumer focus groups, we have 


hsrobinson on PROD1PC72 with NOTICES