36924 Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Rules and Regulations 

Agency. The Office of Management and 

Budget (OMB) has exempted these types 

of actions from review under Executive 

Order 12866, entitled ‘‘Regulatory 

Planning and Review’’ (58 FR 51735, 

October 4, 1993). Because this final rule 

has been exempted from review under 

Executive Order 12866, this final 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) or 

Executive Order 13045, entitled 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997). 

This final rule does not contain any 

information collections subject to OMB 

approval under the Paperwork 

Reduction Act (PRA), 

44 U.S.C. 3501 et seq., nor does it 

require any special considerations 

under Executive Order 12898, entitled 

‘‘Federal Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations’’ (59 FR 7629, February 16, 

1994). 

Since tolerances and exemptions that 

are established on the basis of a petition 

under FFDCA section 408(d), such as 

the tolerance in this final rule, do not 

require the issuance of a proposed rule, 

the requirements of the Regulatory 

Flexibility Act (RFA) (5 U.S.C. 601 et 

seq.) do not apply. 

This final rule directly regulates 

growers, food processors, food handlers, 

and food retailers, not States or tribes, 

nor does this action alter the 

relationships or distribution of power 

and responsibilities established by 

Congress in the preemption provisions 

of FFDCA section 408(n)(4). As such, 

the Agency has determined that this 

action will not have a substantial direct 

effect on States or tribal governments, 

on the relationship between the national 

government and the States or tribal 

governments, or on the distribution of 

power and responsibilities among the 

various levels of government or between 

the Federal Government and Indian 

tribes. Thus, the Agency has determined 

that Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999) and Executive Order 13175, 

entitled ‘‘Consultation and Coordination 

with Indian Tribal Governments’’ 

(65 FR 67249, November 9, 2000) do not 

apply to this final rule. In addition, this 

final rule does not impose any 

enforceable duty or contain any 

unfunded mandate as described under 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) (Pub. L. 

104–4). 

This action does not involve any 

technical standards that would require 

Agency consideration of voluntary 

consensus standards pursuant to 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). 

VII. Congressional Review Act 

The Congressional Review Act, 

5 U.S.C. 801 et seq., generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report to each House of 

the Congress and to the Comptroller 

General of the United States. EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of this final rule in the 

Federal Register. This final rule is not 

a ‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

List of Subjects in 40 CFR Part 180 

Environmental protection, 

Administrative practice and procedure, 

Agricultural commodities, Pesticides 

and pests, Reporting and recordkeeping 

requirements. 

Dated: June 8, 2012. 

Steven Bradbury, 

Director, Office of Pesticide Programs. 

Therefore, 40 CFR chapter I is 

amended as follows: 

PART 180—[AMENDED] 

■ 1. The authority citation for part 180 

continues to read as follows: 

Authority: 21 U.S.C. 321(q), 346a and 371. 

■ 2. Section 180.665 is added to read as 

follows: 

§ 180.665 Sedaxane; tolerances for 

residues. 

(a) General. Tolerances are 

established for residues of the fungicide 

sedaxane, including its metabolites and 

degradates, in or on the commodities in 

the following table. Compliance with 

the tolerance levels specified in the 

following table is to be determined by 

measuring only sedaxane, N-[2-[1,1′- 

bicyclopropyl]-2-ylphenyl]-3- 

(difluoromethyl)-1-methyl-1H-pyrazole4-carboxamide, as the sum of its cis- and 

trans-isomers in or on the commodity. 

Commodity Parts per 

million 

Barley, grain ............................. 0 .01 

Barley, hay ................................ 0 .04 

Barley, straw ............................. 0 .01 

Canola, seed ............................ 0 .01 

Commodity Parts per 

million 

Oat, forage ................................ 0 .015 

Oat, grain .................................. 0 .01 

Oat, hay .................................... 0 .06 

Oat, straw ................................. 0 .01 

Rye, forage ............................... 0 .015 

Rye, grain ................................. 0 .01 

Rye, straw ................................. 0 .01 

Soybean, forage ....................... 0 .05 

Soybean, hay ............................ 0 .04 

Soybean, seed .......................... 0 .01 

Wheat, forage ........................... 0 .015 

Wheat, grain ............................. 0 .01 

Wheat, hay ............................... 0 .06 

Wheat, straw ............................. 0 .01 

(b) Section 18 emergency exemptions. 

[Reserved] 

(c) Tolerances with regional 

registrations. [Reserved] 

(d) Indirect inadvertent residues. 

[Reserved] 

[FR Doc. 2012–14957 Filed 6–19–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 23 

[Docket No. OST–2011–0101] 

RIN 2105–AE10 

Airport Concessions Disadvantaged 

Business Enterprise: Program 

Improvements 

AGENCY: Office of the Secretary (OST), 

DOT. 

ACTION: Final rule. 

SUMMARY: This final rule amends the 

Department of Transportation’s Airport 

Concessions Disadvantaged Business 

Enterprise (ACDBE) regulation to 

conform it in several respects to the 

disadvantaged business enterprise (DBE) 

rule for highway, transit, and airport 

financial assistance programs. This rule 

also amends small business size limits 

to ensure that the opportunity for small 

businesses to participate in the ACDBE 

program remains unchanged after taking 

inflation into account. This final rule 

also provides an inflationary adjustment 

in the personal net worth (PNW) cap for 

owners of businesses seeking to 

participate in DOT’s ACDBE program 

and suspends, until further notice, 

future use of the exemption of up to $3 

million in an owner’s assets used as 

collateral for financing a concession. 

DATES: This rule’s amendments to 49 

CFR 23.3 and 23.35 are effective June 

20, 2012. This rule’s amendments to 49 

CFR 23.29, 23.33, 23.45, and 23.57 are 

effective July 20, 2012. 


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Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Rules and Regulations 36925 

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 or Wilbur S. 

Barham, Director, National Airport Civil 

Rights Policy and Compliance, U.S. 

Department of Transportation, Federal 

Aviation Administration, 800 

Independence Avenue SW., 

Washington, DC 20591, Room 1030, 

202–385–6210, wilbur.barham@faa.gov. 

SUPPLEMENTARY INFORMATION: On 

January 28, 2011, the Department of 

Transportation published a Final Rule 

making several program improvements 

to the Department’s DBE program rule 

(49 CFR part 26) for financial assistance 

programs (76 FR 5083). On May 27, 

2011, the Department issued a notice of 

proposed rulemaking (NPRM) that 

proposed conforming amendments to 

the Department’s companion rule for the 

ACDBE program (49 CFR part 23). The 

Department received a total of nine 

comments concerning the NPRM from 

three ACDBE firms, two consultants, 

one trade association, two airport 

recipients, and one individual. 

In the preamble to the proposed rule, 

the Department explained that it was 

not necessary to propose conforming 

changes to Part 23 that would be 

parallel to all of the Part 26 changes. 

The NPRM noted Part 23 has existing 

provisions that already conform many of 

the amendments in Part 26. It cited as 

an example that it was not necessary to 

include a Part 23 provision parallel to 

the change to § 26.11 concerning the 

frequency of reports, since § 23.27(b) 

already states the appropriate reporting 

frequency for Part 23 reports. 

Additionally, the NPRM noted that 

there are many Part 26 amendments that 

apply automatically to Part 23 because 

certain sections in Part 23 incorporate 

provisions of Part 26. A list of these 

amendments was provided in the 

NPRM, with an explanation of their 

applicability to the ACDBE program, 

and are listed below again for reference: 

• § 26.31: This amendment, requiring 

that the DBE directory include the list 

of each type of work for which a firm 

is eligible to be certified, applies to the 

ACDBE program as well. 

• § 26.51: Applied in the ACDBE 

context, this amendment directs 

recipients that originally set all raceneutral goals to start setting raceconscious concession-specific goals if it 

appears that the race-neutral approach 

was not working. 

• § 26.53: As applied to ACDBEs, this 

amended section sets forth the 

circumstances in which a prime 

concessionaire has good cause to 

terminate an ACDBE firm. 

• § 26.71: Under this amended 

section, the types of work an ACDBE 

firm can perform must be described in 

terms of the most specific available 

NAICS code for that type of work. 

• § 26.73: This amended section 

provides that certification of a firm may 

not be denied solely on the basis that it 

is a newly formed firm, has not 

completed projects or contracts at the 

time of its application, has not yet 

realized profits from its activities, or has 

not demonstrated a potential for 

success. 

• § 26.81: The requirements for 

Unified Certification Programs (UCPs) 

were amended to require the UCP to 

revise the print version of the Directory 

at least once a year. 

• § 26.83: The amended procedures 

for making certification decisions apply 

in the ACDBE context. The amendments 

include a new subsection that addresses 

the procedure for a certification 

decision involving an application that 

was withdrawn and then resubmitted. 

• § 26.84: This section was removed 

in the recently issued Part 26 Final 

Rule. 

• § 26.85: This is a section describing 

the process of interstate certification for 

a DBE firm. This includes the 

information the applicant must provide 

to the other state (‘‘State B’’), what 

actions State B must take when it 

receives an application, and appropriate 

reasons for making a determination that 

there is good cause to believe that the 

home state’s, State A, certification of the 

firm is erroneous or should not apply in 

State B. 

Today’s final rule also includes the 

inflationary adjustment of the size limits 

on small businesses participating in the 

ACDBE program. On April 3, 2009, the 

DOT adopted a final rule that required 

it to adjust the general ACDBE gross 

receipts caps for inflation every two 

years using the same method, and to 

publish a final rule to update the size 

standard numbers. This final rule 

updates the ACDBE gross receipts caps 

that were published on April 3, 2009, to 

reflect 2011 dollars through the fourth 

quarter of calendar year 2011. 

Comments and Responses 

In an effort to ensure that the Part 26 

changes made sense in the ACDBE 

context, the NPRM requested comments 

on the following as to whether there 

were terms or concepts in the Part 26 

amendments that needed to be modified 

to conform to Part 23. 

Improving Interstate Certification 

The Department received one 

comment from a trade association 

recommending the issuance of a 

guidance document to ensure that the 

objectives of improving interstate 

certification are achieved. In regards to 

the § 26.85 process, this same 

association was concerned that the 

process for interstate certification for an 

ACDBE firm would not be applied 

consistently. They strongly 

recommended that training be provided 

to address the special circumstances 

that arise in the ACDBE context and that 

a central agency should verify 

certifications where there were 

disparate results among different UCPs. 

The association also strongly 

recommended that key certificationrelated elements, such as the 

certification application and Personal 

Net Worth (PNW) forms list of requested 

items, be used without modification. 

Another commenter believed that 

while improvement of interstate 

certification was a much needed initial 

step, DOT should adopt a program that 

recognized certifications nationally for 

ACDBE firms. This commenter 

identified several benefits for a national 

approach, including ease for a national 

prime concessionaire to solicit ACDBE 

participation in an airport concession 

regardless of geographic area, thereby 

increasing the availability and the 

participation of ACDBEs as subconcessionaires. This commenter also 

noted that a national certification 

program would assist recipients in 

reporting car rental accomplishments, 

since any certified ACDBE utilized by 

the car rental companies (most of whom 

are national firms) could be included. 

The commenter continued by 

recommending that the rule be amended 

to allow a recipient to count the 

participation of an ACDBE firm that is 

certified in the firm’s home state 

regardless of where the concession is 

located. 

DOT Response 

The Department agrees that 

standardizing forms and interpretations 

and providing and fostering training for 

UCP personnel that addresses airport 

concessions and ACDBE circumstances, 

can improve consistency in the review 

of ACDBE applications and in the 

interstate certification process. In 

support of these objectives, the 

Department noted in the final Part 26 

rule that it plans to issue a follow-on 

NPRM that will address improvements 

in the certification application and PNW 

forms, which certification agencies then 

would be required to use without 


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change. These changes would apply to 

the ACDBE program as well. However, 

the Department does not view having a 

central agency verify an ACDBE’s 

certification status, after receiving 

disparate results among different UCPs, 

to be a practical solution. The purpose 

of the interstate certification process is 

to address the very issue of 

disagreements among certifying 

agencies in a consistent manner. 

Moreover, there is already an office to 

which a firm can appeal an ACDBE 

certification denial decision—the U.S. 

DOT’s Departmental Office of Civil 

Rights. 

The Department had previously 

requested comments on the issue of 

nationwide approaches to certification 

and had responded to those comments 

in the May 10, 2010, NPRM to Part 26 

DBE program improvements (75 FR 

25818 (2010)). The approach the 

Department finally adopted was to first 

take steps to make interstate 

certification easier under the current 

statewide approach to certification. The 

Department believes that this approach 

is a significant incremental step toward 

nationwide reciprocity, which would 

increase the likelihood of achieving the 

benefits identified for the ACDBE 

program. 

Regarding the stated need for 

certification training, we note that there 

is a requirement in the recently enacted 

FAA Modernization and Reform Act of 

2012 that the Department develop 

mandatory certification training. The 

Department is currently considering 

how best to implement this mandate. In 

doing so, we can build on existing 

certification training that the 

Department already provides through 

webinars, conferences, and workshops. 

Fostering Small Business Participation 

Though the Department stated in the 

NPRM that it would not propose a 

parallel provision in Part 23 for 

amended § 26.39 on fostering small 

business participation, we asked for 

comments on whether additional smallbusiness-related provisions are needed 

in the concessions context. The 

Department explained that its current 

focus was on applying this provision to 

Federally-assisted contracting and 

associated issues such as ‘‘unbundling.’’ 

Two commenters responded with strong 

support for including a small business 

element in the ACDBE program that 

would unbundle large concession 

opportunities. They believed that 

certain business practices presented 

barriers to equitable participation by 

ACDBEs. The prime concessionaire 

model, they said, did not permit smallto-medium size ACDBEs to compete 

successfully for prime contract 

opportunities, as large firms under this 

model would be allowed to dominate 

the national marketplace as prime 

concessionaires. Consequently, this 

would create a significant obstacle for 

smaller firms trying to penetrate the 

market. Another reason given for 

including a small business element was 

that ACDBEs faced the same difficulties 

as other small businesses, such as 

obtaining loans. The association 

commenter stated that if a small 

business element provision was adopted 

for the ACDBE program, it should allow 

for a great deal of local flexibility in 

determining an airport’s small business 

provisions, and that FAA should 

monitor recipients’ programs to ensure 

that the new small business provision 

would not undermine the existing 

ACDBE program. This association also 

suggested that the FAA should review 

whether the SBA small business size 

standards are appropriate for ACDBEs 

and recommended that the FAA 

perform increased monitoring and 

enforcement of the good faith effort 

provisions. A commenter also suggested 

that FAA provide more guidance on this 

provision. 

DOT Response 

The Department appreciates the 

comments that have been received on 

the question regarding additional small 

business-related provisions in the 

concessions context. The initial 

response from commenters indicates 

there may be barriers to ACDBEs in the 

concessions program that a small 

business element may help to alleviate. 

Although we are not issuing a small 

business program requirement for the 

ACDBE program at this time, we will 

consider these comments in deciding 

whether to proceed with a small 

business provision for the ACDBE 

program in the future. The Department 

also hopes to learn from airport 

recipients’ implementation of the small 

business element requirement for the 

Part 26 program. 

Adjusting the Personal Net Worth Cap 

To conform to the Part 26 inflationary 

adjustment in the personal net worth 

(PNW) cap, the NPRM proposed to 

amend § 23.35 by substituting $1.32 

million for the current $750,000 as the 

personal net worth (PNW) standard. The 

NPRM explained that the Part 23 PNW 

provision is separate from the PNW 

provision in Part 26, so a specific Part 

23 amendment was needed to maintain 

consistency between the two 

regulations. The ACDBE commenters 

strongly supported the PNW increase, 

and they applauded the Department for 

increasing the current standard to 

promote growth among ACDBEs and 

providing greater access to capital from 

financial institutions and capital 

markets. 

One commenter, however, disagreed 

with the use of the Consumer Price 

Index (CPI) for determining the PNW 

increase, saying that it presumes 

erroneously that an ACDBE owner has 

grown his or her personal worth at the 

same rate as a non-ACDBE. The 

commenter suggested instead that the 

Department conduct an independent 

analysis to arrive at a PNW amount. The 

commenter also suggested that there be 

a lower PNW limit for ACDBEs entering 

the program, and a higher PNW limit for 

ACDBEs that are growing and may 

eventually graduate from the program. 

Two commenters suggested that further 

rulemaking was needed to make 

automatic adjustments to the PNW for 

inflation. One suggestion was to make 

the adjustment at a regular interval of 

every two or three years. 

The Department also received several 

comments on the issue of retirement 

assets. Two ACDBEs, an ACDBE 

consultant, and an association strongly 

supported a change in the rule to 

exempt retirement assets from the 

disadvantaged business owner’s PNW. 

Two commenters believed that it would 

be poor policy to discourage owners 

from providing for their retirement. 

They suggested that, as a minimum, 

certain types of retirement assets, such 

as company sponsored 401(k), profit 

sharing, and pension plans, which have 

capped contributions and are regulated 

by federal law, should be excluded from 

the PNW. 

DOT Response 

The Department has adopted the Part 

26 inflationary adjustment of the PNW 

cap to $1.32 million for the Part 23 

program, with the inflationary 

adjustment based on the Department of 

Labor’s consumer price index (CPI) 

calculator. In choosing the CPI, the 

Department explained in the final Part 

26 rule that the CPI appeared to be the 

one approach that is most relevant to an 

individual’s personal wealth. While no 

index is perfect, the more complex 

approaches suggested by some 

commenters, including the development 

of a DOT-specific index, do not appear 

practicable. In the Preamble to the final 

rule for Part 26, the Department 

announced that it was not ready at that 

time to decide the issue of retirement 

assets. We are still evaluating this 

matter. 


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PNW Third Exemption 

The NPRM also requested comments 

on whether the third exemption that is 

currently a part of the Part 23 PNW 

definition should be retained in the 

definition, deleted altogether, modified, 

or replaced with a different but more 

workable provision aimed to achieve a 

similar objective. This third exemption 

is an exemption from the PNW 

calculation for ‘‘other assets that the 

individual can document as necessary 

to obtain financing or a franchise 

agreement for the initiation or 

expansion of his or her ACDBE firm (or 

have in fact been encumbered to 

support existing financing for the 

individual’s ACDBE business), to a 

maximum of $3 million.’’ The NPRM 

summarized the background and 

rationale for the third exemption, which 

was added in the 2005 ACDBE rule (see 

70 FR 14497–14499 (March 22, 2005)) to 

respond to concerns of commenters that 

a PNW standard of $750,000 could 

inhibit opportunities for business 

owners to enter the concessions field 

and expand existing businesses. The 

Department’s decision to establish the 

third exemption was also made in order 

to preserve the underlying standard 

PNW for both the Part 23 and Part 26 

programs while responding to 

comments that a higher standard could 

be justified in some cases in the ACDBE 

context. The Department also noted in 

the NPRM that it is aware that the $3 

million exemption from PNW for assets 

used as collateral for a loan has been 

difficult to implement, and we asked for 

comments on how to improve the 

definition of this exemption so that if 

retained, the exemption could be 

implemented more effectively. 

Three commenters supported 

retaining the third exemption, and one 

commenter opposed it. An association 

noted that the uniqueness of the ACDBE 

industry required that ACDBEs have the 

ability to maintain capital to finance 

growth, development and expansion. 

One commenter opposed the exemption 

because the commenter believed it 

could be used as a tool to hide assets. 

This commenter was also concerned 

that the practice of an ACDBE using its 

personal property as collateral was not 

parallel to non-ACDBE business 

practices. Another commenter said the 

definition was unclear and that 

implementation required clarification 

since there was inconsistent application 

by UCPs. This commenter noted that the 

number of applicants using the third 

exemption was minimal and questioned 

whether there was a need to retain it. 

Although we did not receive specific 

suggestions for improvement, most 

commenters on this issue desired more 

guidance. 

Because of the very limited number of 

responses the Department received to its 

request for comment on this issue, the 

FAA engaged a consultant to gather 

additional information on the subject. 

(A copy of the consultant’s report has 

been placed in the docket.) The 

consultant contacted all certifying 

agencies in the DOT database, 

ultimately receiving responses from 20 

agencies which, among them, had 

received 16 requests for use of the third 

exemption over the time the provision 

had been in effect. Thirteen requests 

were granted (three of which were 

approved after appeals to the 

Departmental Office of Civil Rights). 

Three requests were denied. There were 

differences among these agencies in 

terms of the documentation that they 

required, and most thought that there 

was a lack of clarity in the Department’s 

requirement that called for additional 

guidance and training. Some of the 

ACDBE firms interviewed said that 

uncertainty about the application of the 

provision would deter them from 

seeking to use the third exemption. The 

ACDBEs interviewed saw value in the 

provision, but agreed that further 

clarification and guidance were needed. 

DOT Response 

Current evidence indicates that the 

third exemption is not used frequently, 

and, when it is, it often appears to be 

the subject of considerable uncertainty 

and confusion on the part of ACDBEs 

and certifying agencies alike. It may be 

subject to misuse. We believe that 

further consideration is necessary to 

determine whether the provision should 

be retained, modified, or deleted. 

Further study, including gathering more 

in-depth information about how the 

provision has been used to date, would 

be helpful in making this determination. 

However, we recognize that deciding 

what modifications in the provision, if 

any, would be needed to clarify the 

provision, or developing additional 

guidance to clarify the existing 

provision, are likely to take a good deal 

of time. Moreover, this rule’s 

inflationary adjustment of the 

underlying PNW cap to $1.32 million, 

which maintains the real dollar value of 

the previous $750,000 cap, may have 

the effect of mitigating what the 

Department saw, in 2005, as the need 

for adopting a provision of this kind. On 

the other hand, it is possible, given the 

comments of some program 

participants, that a provision of this 

kind can have continuing utility, 

especially with further clarification, 

guidance, and training. 

For these reasons, the Department has 

decided neither to continue the existing 

provision in effect nor to delete it. 

Rather, the Department is suspending 

the effectiveness of the provision until 

further notice. It is important to note 

that this suspension of the third 

exemption is prospective, not 

retroactive. This means that, where a 

firm applies for ACDBE certification or 

an existing firm obtains financing, a 

loan, or a franchise agreement after the 

effective date of this rule change, the 

third exemption will not apply. In such 

cases, the only exemptions from the 

PNW calculation will be the equity the 

disadvantaged owner of a firm has in his 

or her primary personal residence and 

the individual’s ownership interest in 

the ACDBE firm in question. 

However, in cases where a recipient 

or certifying agency has already 

calculated a firm owner’s PNW, based 

on the third exemption based on 

financing, a loan, or a franchise 

agreement obtained before the effective 

date of this change, that calculation will 

then be allowed to stand. This includes 

situations in which an original 

calculation of PNW including the third 

exemption was made in the context of 

a certification that is later reviewed. Of 

course, as the owner pays down a loan, 

the amount of the owner’s assets 

supporting that loan, and thus the assets 

that can be exempted from the PNW 

calculation, will decline with the loan 

balance. In all cases involving the 

application of the third exemption, the 

FAA retains the discretion to examine 

documents to ensure that the third 

exemption is being used properly. 

Meanwhile, the Department will 

continue to evaluate this issue and seek 

additional input from stakeholders 

before deciding whether ultimately to 

remove, modify, or replace the third 

exemption. The Department will also 

consider what guidance may be helpful 

in helping recipients to use the third 

exemption, or a modification of it, if and 

when its effectiveness is reinstated. 

Monitoring the Work of ACDBEs 

The NPRM proposed to adopt in 

§ 23.29 the change that was made in 

§ 26.37 concerning enhanced 

monitoring of the actual performance of 

work by DBEs. The NPRM explained 

that airports would be responsible for 

reviewing documents and actual on-site 

performance to ensure that ACDBEs 

were actually performing the work 

committed to them during the 

concession award process, and to certify 

that they have done so to the FAA. All 

comments received on this issue were in 

favor of increased monitoring. An 

association commenter suggested that 


pmangrum on DSK3VPTVN1PROD with RULES
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the Department and FAA provide 

guidance on practices that airports 

might use to monitor effectively the 

work of ACDBEs, given available 

resources. 

DOT Response 

The Department has adopted the 

proposed change for enhanced 

monitoring in § 23.29. The FAA also 

plans to make available to all sponsors 

a compilation of best practices in 

monitoring DBE and ACDBE programs. 

This includes monitoring the work of 

ACDBEs as a product of the post award 

compliance reviews that it conducts of 

airport recipients’ DBE and ACDBE 

programs, and a review of documents 

obtained from other sources. The FAA 

plans to develop such a compilation and 

post the results on its Web site. 

Adjusting a Recipient’s Overall Goal 

The NPRM also asked for comment on 

the provision in § 23.45(i) concerning 

the requirement to submit an 

adjustment to a recipient’s overall goal 

to the FAA if a new concession 

opportunity estimated to be $200,000 or 

more in estimated average annual gross 

revenues arose at a time that fell 

between normal submission dates for 

overall goals. Section 23.45(i) currently 

requires the recipient to submit its 

adjustment at least six months before 

executing the concession agreement for 

the new concession opportunity. The 

NPRM asked whether this provision 

should be retained or changed. Both 

airport recipient commenters (a large 

hub and a small hub) and an association 

commenter objected to the six-month 

submission requirement to the FAA. All 

asserted that the six-month submission 

would impose an undue burden on 

airport recipients, as it would create 

long and unacceptable lead times for 

executing new concession agreements 

that could result in funding problems 

for the concessionaire. The small hub 

airport recipient commenter 

recommended instead, that FAA require 

only a one to two month submission 

time, whereas the large hub airport 

recipient commenter believed that it 

was unnecessary to submit an 

adjustment at all since existing 

procedures for developing a three-year 

overall goal accommodate the 

identification of projected new 

opportunities. 

DOT Response 

The Department believes that many 

airport recipients may still require an 

adjustment to their overall goal when it 

has one or more new concession 

opportunities that, for whatever reason, 

were not projected in their three-year 

plan. Since these opportunities may be 

significant and may offer ACDBE 

opportunities, airports are required to 

conduct an analysis to determine 

ACDBE availability and whether their 

overall goal should be adjusted. The 

reasons for the current requirement for 

sponsors to submit an adjusted goal at 

least six-months before executing the 

concession agreement were to encourage 

the sponsor to obtain approval from the 

FAA prior to the issuance of a new 

concession opportunity that may offer 

ACDBE opportunities and to provide the 

FAA a reasonable amount of time to 

review the airport’s submission. In 

response to the concerns expressed by 

the two airport sponsors and the 

association commenter, the Department 

is making two changes. In place of 

requiring an adjusted goal submission at 

least six months before executing the 

concession agreement, the Department 

will require that an adjusted goal be 

submitted to the FAA no later than 90 

days prior to the sponsor’s issuance of 

the solicitation. These two changes, the 

trigger event and the change in the 

submission deadline to the FAA, should 

help a sponsor obtain FAA’s prior 

approval of its adjusted overall goal and 

include any ACDBE participation in the 

new concession opportunity consistent 

with the sponsor’s approved ACDBE 

goal. FAA anticipates that it can 

complete its review within 45 days of 

receiving the sponsor’s adjusted overall 

goal submission, assuming FAA has 

received all necessary information and 

any follow-up clarifications from the 

sponsor in a timely manner. 

Accountability for Meeting Overall 

Goals 

The NPRM proposed to revise § 23.57 

to make its accountability provisions 

parallel to those of the recently 

amended § 26.47(c). The rationale for 

doing so is the same as for Part 26. The 

NPRM requested comments on whether 

any further modifications of the 

language of this provision would be 

useful for purposes of the ACDBE 

program. Two commenters supported 

the accountability provision, while two 

commenters opposed it. Opponents of 

the accountability provision believed 

that the inability of the recipient to meet 

the overall goal was often the result of 

factors that were beyond their control. 

One small hub airport commenter said 

that revenue generation was not in the 

control of the airport and that its 

experience was that the concessionaire 

often did not meet its ACDBE goal, but 

had to show its good faith efforts 

instead. Another commenter said there 

were events and fluctuations, such as 

shifts in airline traffic, which were 

beyond the control of the operator and 

could impact achievement. This 

commenter added that there may not be 

new opportunities available to make up 

for shortfalls in the overall goal 

achievement. Another commenter who 

opposed the provision said it would 

produce an undue burden for airport 

recipients. The commenter said that it 

already had a process that worked to 

correct goal shortfalls. Two commenters 

suggested that the threshold for shortfall 

be clearly defined. The airport recipient 

commenters were concerned about 

being placed in a ‘‘non-compliant’’ 

status. Due to the seriousness of being 

considered ‘‘non-compliant,’’ one 

commenter suggested that recipients 

should be given the opportunity to make 

corrections before a non-compliance 

determination is made by the FAA. 

Another commenter suggested that it 

simply submit a report as part of its 

annual accomplishment report that 

would allow for a fuller explanation of 

why it was unable to meet its overall 

goals, rather than be judged ‘‘noncomplaint’’. One commenter suggested 

that the regulation list acceptable 

corrective actions and that recipients be 

allowed to modify their overall goal if 

the analysis supported the modification. 

DOT Response 

We agree that achievement of 

concession goals may vary over time, in 

part because concession receipts are 

driven by events that are beyond an 

airport’s control. Factors of this kind 

may increase or decrease ACDBE 

achievements, compared to earlier 

projections. We do not believe, 

however, that these or other factors or 

any other factors should override the 

obligation of airport recipients to 

examine their concessions program in 

good faith and to explain and attempt to 

correct for circumstances or policies 

that may lead to shortfalls in meeting 

overall ACDBE goals. This examination, 

for example, may lead to a 

recommendation to take advantage of 

contract changes to negotiate for 

increased ACDBE participation that may 

not have been contemplated before, to 

discuss with ACDBEs and other 

concessionaires potential new 

opportunities, or to plan for future 

ACDBE participation through an 

extensive and comprehensive outreach 

program. When shortfalls can rationally 

be attributed specifically to factors 

beyond an airport’s control, the airport 

would still explain it shortfall by 

reference to such factors. A requirement 

to report the analysis and corrective 

action called for under § 23.57(b)(3) to 

the FAA is imposed only on the CORE 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Rules and Regulations 36929 

1The 30 CORE airports presently handle 63 

percent of the country’s passengers and 68 percent 

of its operations. 

2See Bureau of Economic Analysis National 

Income and Product Account Table; Table 3.10.4 

Price Indexes for Government Consumption 

Expenditures and General Government Gross 

Output. 

30 airports,1 or other airports as 

designated by the FAA, in order to limit 

information collection burdens on other 

airports. 

As we explained in the preamble to 

the final rule for Part 26, the 

accountability mechanism is designed 

to promote transparency and 

accountability, and it is not the same as 

a finding of non-compliance. An airport 

recipient would only be in noncompliance if it refuses to make an 

accountability assessment when it falls 

below its overall goal. We also 

addressed the issue of administrative 

burden in the previously mentioned 

preamble. We do not believe that any 

work needed to meet this requirement is 

‘‘undue,’’ because the steps of an 

accountability review for recipients who 

fail to meet their overall goal should be 

a regular part of their program review 

when a key business objective is not 

met. Therefore, we are retaining the 

proposed accountability provision. 

ACDBE Gross Receipts Size Standards 

Under the current DOT rule, if the 

airport concessions firm’s annual gross 

receipts average over the preceding 

three fiscal years exceed $52,470,000, 

then it is not considered a small 

business eligible to be certified as an 

ACDBE. This final rule makes an 

inflationary adjustment to the size 

standards for eligibility as an ACDBE. 

This adjustment compensates for the 

rise in the general level of prices over 

time from the first quarter of calendar 

year 2009 through the fourth quarter of 

calendar year 2011. It should be 

emphasized that this action does not 

increase the size standard for ACDBES 

in real dollar terms. It simply maintains 

the status quo, adjusting to 2011 dollars. 

In order to make an inflation 

adjustment to the gross receipts figures, 

the Department of Transportation uses a 

Department of Commerce price index. 

The Department of Commerce’s Bureau 

of Economic Analysis prepares constant 

dollar estimates of state and local 

government purchases of goods and 

services by deflating current dollar 

estimates by suitable price indices.2

These indices include purchases of 

durable and non-durable goods, and 

other services. Using these price 

deflators enables the Department to 

adjust dollar figures for past years’ 

inflation. Given the nature of the 

Department’s ACDBE program, 

adjusting the gross receipts cap in the 

same manner in which inflation 

adjustments are made to the costs of 

state and local government purchases of 

goods and services is simple, accurate, 

and fair. 

The inflation rate on purchases by 

state and local governments for the 

current year is calculated by dividing 

the price deflator for the fourth quarter 

of calendar year 2011 (123.622) by 

calendar year 2009’s first quarter price 

deflator (114.971). The result of the 

calculation is 1.0752, which represents 

an inflation rate of 1.075% from the first 

quarter of calendar year 2009. 

Multiplying the $52,470,000 figure for 

small business enterprises by 1.0752 

equals $ 56,415,744, which will be 

rounded off to the nearest $10,000, or 

$56,420,000. 

Therefore, under this final rule, if a 

firm’s gross receipts, averaged over the 

firm’s previous three fiscal years, 

exceeds $56,420,000, then it exceeds the 

airport concessions small business size 

limit contained in § 23.33. 

ACDBE Car Rental Company Size 

Standards 

Under the existing rule, car rental 

companies are not eligible to participate 

in the ACDBE program if their average 

gross receipts over the three previous 

fiscal years exceed $69,970,000. This 

final rule adjusts the size standard for 

car rental companies to reflect the 

effects of inflation on the real dollar 

value. 

The inflation rate on purchases by 

state and local governments for 2011 is 

calculated by dividing the price deflator 

for the fourth quarter of calendar year 

2011 (123.622) by calendar year 2009’s 

first quarter price deflator (114.971). 

The result of the calculation is 1.0752, 

which represents an inflation rate of 

1.075% from the first quarter of 

calendar year 2009. Multiplying the 

$69,970,000 figure for car rental 

companies by 1.0752 equals 

$75,231,744, which will be rounded off 

to the nearest $10,000, or $75,230,000. 

Therefore, under this final rule, if a 

car rental company’s gross receipts, 

averaged over the company’s previous 

three fiscal years, exceeds $75,230,000, 

then it exceeds the airport concessions 

car rental company size limit contained 

in § 23.33. 

Regulatory Analyses and Notices 

Administrative Procedure Act 

Under the Administrative Procedure 

Act (5 U.S.C. 553(b)), an agency may 

waive the normal notice and comment 

requirements if it finds that they are 

impracticable, unnecessary, or contrary 

to the public interest. The Department 

finds that notice and comment for the 

portion of the rule at § 23.33 relating to 

inflationary adjustment of size limits for 

ACDBE eligibility is unnecessary and 

contrary to the public interest because it 

relates only to ministerial updates of 

business size standards to account for 

inflation, which does not change the 

standards in real dollar terms. These 

updates will assist entities attempting to 

be part of the Department’s ACDBE 

program and should not be 

unnecessarily delayed. Accordingly, the 

Department finds good cause under 5 

U.S.C. 553(b) to waive notice and 

opportunity for public comment. Other 

provisions of the final rule were 

preceded by an opportunity for notice 

and comment. 

In addition, under the Administrative 

Procedure Act (5 U.S.C. 553(d)), an 

agency may make a final rule effective 

immediately upon publication, as 

distinct from the normal 30 days 

following publication, if it relieves a 

restriction or otherwise for good cause. 

The Department is making the 

amendments to §§ 23.3 and 23.35 

effective immediately. The amendment 

to § 23.3 suspends prospectively, until 

further notice, the ‘‘third exemption’’ 

from the definition of personal net 

worth. Failure to make this suspension 

effective immediately would create a 

clear incentive for potential applicants 

to hurry their applications to recipients 

in order to ‘‘beat the clock.’’ The 

Department has good cause to make the 

change effective immediately to prevent 

this foreseeable result of the normal 30- 

day delay in the effective date of a final 

rule provision. 

The amendment to § 23.35 

harmonizes the personal net worth 

criterion of the ACDBE (49 CFR part 23) 

with that of the DBE rule (49 CFR part 

26), which the Department adjusted for 

inflation in 2011. Both will now be 

$1.32 million. This action relieves a 

restriction on the personal net worth 

that may be held by an ACDBE owner, 

which previously had been limited to 

$750,000. The Department has good 

cause for making this change effective 

upon publication because failing to do 

would expose otherwise eligible firms to 

the denial of ACDBE certification on the 

basis of an about-to-change personal net 

worth criterion, potentially causing 

these firms to lose business 

opportunities. In addition, it makes 

sense to have this provision go into 

effect at the same time as the suspension 

of the third exemption. 


pmangrum on DSK3VPTVN1PROD with RULES
36930 Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Rules and Regulations 

Executive Orders 12866 and 13422 and 

DOT Regulatory Policies and Procedures 

This is a non-significant regulation for 

purposes of Executive Orders 12866 

13422 and the Department of 

Transportation’s Regulatory Policies and 

Procedures. The provisions in the rule 

involve administrative modifications to 

several provisions of a long-existing and 

well-established program, designed to 

improve the program’s implementation 

and to harmonize these provisions with 

parallel provisions in the January 2011 

amendments to 49 CFR part 26, the 

Department’s DBE rule for financial 

assistance programs, which was itself a 

non-significant rulemaking. These 

portions of the rule do not alter the 

direction of the program, make major 

policy changes, or impose significant 

new costs or burdens. 

One provision of the rule concerns a 

ministerial adjustment for inflation of a 

small business size standard that does 

not change the standard in real dollar 

terms. This provision will not impose 

burdens on any regulated parties. In 

addition, this provision would not 

create inconsistency with any other 

agency’s action or materially alter the 

budgetary impact of any entitlements, 

grants, user fees, or loan programs. 

Consequently, a full regulatory 

evaluation is not required for the rule. 

Regulatory Flexibility Act 

A number of provisions of the rule 

reduce small business burdens or 

increase opportunities for small 

businesses. The personal net worth 

change would allow some small 

businesses to remain in the ACDBE 

program for a longer period of time. 

Small airport recipients would not be 

required to prepare or transmit reports 

concerning the reasons for overall goal 

shortfalls and corrective action steps to 

be taken as stated in § 23.57. Only a 

limited number of large airports would 

have to file these reports. These 

provisions of the rule do not make major 

policy changes that would cause 

recipients to expend significant 

resources on program modifications. 

With regard to the provision on 

inflationary adjustment of ACDBE size 

limits, we have evaluated the effects of 

this action on small entities and have 

determined that the only effect of this 

portion of the rule on small entities is 

to allow some small businesses to 

continue to participate in the ACDBE 

program by adjusting for inflation. For 

these reasons, the Department certifies 

that the rule does not have a significant 

economic effect on a substantial number 

of small entities. 

Federalism 

A rule has implications for federalism 

under Executive Order 13132, 

Federalism, if it has a substantial direct 

effect on State or local governments and 

would either preempt State law or 

impose a substantial direct cost of 

compliance on them. We have analyzed 

this rule under the Order and have 

determined that it does not have 

significant implications for Federalism, 

since it merely makes administrative 

modifications to an existing program, 

and updates the dollar limits and size 

limits to define small businesses for the 

Department’s ACDBE program. It does 

not change the relationship between the 

Department and State or local 

governments, preempt State law or State 

regulation, affect the States’ ability to 

discharge traditional State governmental 

functions, or impose substantial direct 

compliance costs on those governments. 

Unfunded Mandates Reform Act of 1995 

Since this rule pertains to a 

nondiscrimination requirement and 

affects only Federal financial assistance 

programs, the Unfunded Mandates Act 

does not apply. 

Paperwork Reduction Act 

As required by the Paperwork 

Reduction Act of 1995, DOT has 

submitted the Information Collection 

Requests (ICRs) below to the Office of 

Management and Budget (OMB). Before 

OMB decides whether to approve these 

proposed collections of information and 

issue a control number, the public must 

be provided 30 days to comment. 

Organizations and individuals desiring 

to submit comments on the collections 

of information in this rule should direct 

them to the Office of Management and 

Budget, Attention: Desk Officer for the 

Office of the Secretary of 

Transportation, Office of Information 

and Regulatory Affairs, Washington, DC 

20503. OMB is required to make a 

decision concerning the collection of 

information requirements contained in 

this rule between 30 and 60 days after 

publication of this document in the 

Federal Register. The Department’s 

NPRM included the requisite PRA 

information. OMB did not submit 

comments to the rulemaking docket. As 

provided in 5 CFR 1320.11(h), the 

Department will submit relevant 

material to OMB in order to receive an 

OMB control number for the 

information collections. The 

Department will publish a Federal 

Register notice concerning the 

assignment of a control number when 

that occurs. 

We will respond to any OMB or 

public comments on the information 

collection requirements contained in 

this rule. The Department will not 

impose a penalty on persons for 

violating information collection 

requirements which do not display a 

current OMB control number, if 

required. 

For the information of interested 

persons we estimate that the total 

incremental annual burden hours for the 

information collection requirements in 

this rule is 13,101 hours. 

The following is the incremental 

collection requirement in this rule: 

Certification of Monitoring: (49 CFR 

23.29) 

Each recipient would certify that it 

had conducted post-award monitoring 

of contracts which would be counted for 

ACDBE credit to ensure that ACDBEs 

had done the work for which credit was 

claimed. The certification is for the 

purpose of ensuring accountability for 

contract monitoring which the 

regulation already requires. 

Respondents: 301 (i.e., airports with 

covered concessions). 

Frequency: 1,311 non-car rental 

contracts to ACDBEs; 691 car rental 

concession contracts to ACDBEs, for a 

total of 2,002, or an average of 6.7 

ACDBE contracts per airport. 

Estimated Burden per Response: 1⁄2

hour. 

Estimated Total Annual Burden: 

1,001 hours. 

Accountability Mechanism (49 CFR 

23.57) 

If a recipient failed to meet its overall 

goal in a given year, it would have to 

determine the reason for its failure and 

establish corrective steps. Of the 301 

airports covered by this rule, 30 of the 

largest recipients would transmit this 

analysis to DOT if their overall goal was 

not achieved; smaller recipients would 

perform the analysis but would not be 

required to submit it to DOT. We 

estimate that about half of the recipients 

(150) would be subject to this 

requirement in a given year, and 20 of 

the 30 largest airports would have to 

submit their reports to the FAA in a 

given year. 

Respondents: 150. 

Estimated Average Burden per 

Response: 80 hours + 5 additional hours 

for recipients sending report to DOT. 

Total number of recipients sending 

report to DOT: 20. 

Estimated Total Annual Burden: 

12,100 hours. 

List of Subjects in 49 CFR Part 23 

Administrative practice and 

procedure, Airports, Civil rights, 


pmangrum on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Rules and Regulations 36931 

Concessions, Government contracts, 

Grant programs—transportation, 

Minority businesses, Reporting and 

recordkeeping requirements. 

Issued this 7th Day of June 2012 at 

Washington DC. 

Ray LaHood, 

Secretary of Transportation. 

For the reasons set forth in the 

preamble, the Department of 

Transportation amends 49 CFR part 23 

as follows: 

PART 23—PARTICIPATION OF 

DISADVANTAGED BUSINESS 

ENTERPRISE IN AIRPORT 

CONCESSIONS 

■ 1. The authority citation for 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. In § 23.3, revise the definition of 

‘‘personal net worth’’ to read as follows: 

§ 23.3 What do the terms used in this part 

mean? 

* * * * * 

Personal net worth means the net 

value of the assets of an individual 

remaining after total liabilities are 

deducted. An individual’s personal net 

worth (PNW) does not include the 

following: 

(1) The individual’s ownership 

interest in an ACDBE firm or a firm that 

is applying for ACDBE certification; (2) 

The individual’s equity in his or her 

primary place of residence; and (3) 

Other assets that the individual can 

document are necessary to obtain 

financing or a franchise agreement for 

the initiation or expansion of his or her 

ACDBE firm (or have in fact been 

encumbered to support existing 

financing for the individual’s ACDBE 

business) to a maximum of $3 million. 

The effectiveness of this paragraph (3) of 

this definition is suspended with 

respect to any application for ACDBE 

certification made or any financing or 

franchise agreement obtained after June 

20, 2012. 

* * * * * 

■ 3. Revise § 23.29 to read as follows: 

§ 23.29 What monitoring and compliance 

procedures must recipients follow? 

As a recipient, you must implement 

appropriate mechanisms to ensure 

compliance with the requirements of 

this part by all participants in the 

program. You must include in your 

concession program the specific 

provisions to be inserted into 

concession agreements and management 

contracts setting forth the enforcement 

mechanisms and other means you use to 

ensure compliance. These provisions 

must include a monitoring and 

enforcement mechanism to verify that 

the work committed to ACDBEs is 

actually performed by the ACDBEs. This 

mechanism must include a written 

certification that you have reviewed 

records of all contracts, leases, joint 

venture agreements, or other 

concession-related agreements and 

monitored the work on-site at your 

airport for this purpose. The monitoring 

to which this paragraph refers may be 

conducted in conjunction with 

monitoring of concession performance 

for other purposes. 

■ 4. Revise § 23.33 to read as follows: 

§ 23.33 What size standards do recipients 

use to determine the eligibility of ACDBEs? 

(a) As a recipient, you must, except as 

provided in paragraph (b) of this 

section, treat a firm as a small business 

eligible to be certified as an ACDBE if 

its gross receipts, averaged over the 

firm’s previous three fiscal years, do not 

exceed $56.42 million. 

(b) The following types of businesses 

have size standards that differ from the 

standard set forth in paragraph (a) of 

this section: 

(1) Banks and financial institutions: 

$1 billion in assets; 

(2) Car rental companies: $75.23 

million average annual gross receipts 

over the firm’s three previous fiscal 

years, as adjusted by the Department for 

inflation every two years from April 3, 

2009. 

(3) Pay telephones: 1,500 employees; 

(4) Automobile dealers: 350 

employees. 

(c) The Department adjusts the 

numbers in paragraphs (a) and (b)(2) of 

this section using the Department of 

Commerce price deflators for purchases 

by State and local governments as the 

basis for this adjustment. The 

Department publishes a Federal 

Register document informing the public 

of each adjustment. 

§ 23.35 [Amended] 

■ 5. In § 23.35, remove the number 

‘‘$750,000’’ and add in its place ‘‘$1.32 

million’’. 

■ 6. Revise § 23.45(i) to read as follows: 

§ 23.45 What are the requirements for 

submitting overall goal information to the 

FAA? 

* * * * * 

(i) If a new concession opportunity, 

the estimated average annual gross 

revenues of which are anticipated to be 

$200,000 or greater, arises at a time that 

falls between normal submission dates 

for overall goals, you must submit an 

appropriate adjustment to your overall 

goal to the FAA for approval no later 

than 90 days before issuing the 

solicitation for the new concession 

opportunity. 

■ 7. Revise § 23.57(b) and (c) to read as 

follows: 

§ 23.57 What happens if a recipient falls 

short of meeting its overall goals? 

* * * * * 

(b) If the awards and commitments 

shown on your Uniform Report of 

ACDBE Participation (found in 

Appendix A to this Part) at the end of 

any fiscal year are less than the overall 

goal applicable to that fiscal year, you 

must do the following in order to be 

regarded by the Department as 

implementing your ACDBE program in 

good faith: 

(1) Analyze in detail the reasons for 

the difference between the overall goal 

and your awards and commitments in 

that fiscal year; 

(2) Establish specific steps and 

milestones to correct the problems you 

have identified in your analysis and to 

enable you to meet fully your goal for 

the new fiscal year; 

(3) (i) If you are a CORE 30 airport or 

other airport designated by the FAA, 

you must submit, within 90 days of the 

end of the fiscal year, the analysis and 

corrective actions developed under 

paragraphs (b)(1) and (2) of this section 

to the FAA for approval. If the FAA 

approves the report, you will be 

regarded as complying with the 

requirements of this section for the 

remainder of the fiscal year. 

(ii) As an airport not meeting the 

criteria of paragraph (b)(3)(i) of this 

section, you must retain analysis and 

corrective actions in your records for 

three years and make it available to the 

FAA, on request, for their review. 

(4) The FAA may impose conditions 

on the recipient as part of its approval 

of the recipient’s analysis and corrective 

actions including, but not limited to, 

modifications to your overall goal 

methodology, changes in your raceconscious/race-neutral split, or the 

introduction of additional race-neutral 

or race-conscious measures. 

(5) You may be regarded as being in 

noncompliance with this part, and 

therefore subject to the remedies in 

§ 23.11 of this part and other applicable 

regulations, for failing to implement 

your ACDBE program in good faith if 

any of the following things occur: 

(i) You do not submit your analysis 

and corrective actions to FAA in a 

timely manner as required under 

paragraph (b)(3) of this section; 

(ii) FAA disapproves your analysis or 

corrective actions; or 

(iii) You do not fully implement: 


pmangrum on DSK3VPTVN1PROD with RULES
36932 Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Rules and Regulations 

(A) The corrective actions to which 

you have committed, or 

(B) Conditions that FAA has imposed 

following review of your analysis and 

corrective actions. 

(c) If information coming to the 

attention of FAA demonstrates that 

current trends make it unlikely that you, 

as an airport, will achieve ACDBE 

awards and commitments that would be 

necessary to allow you to meet your 

overall goal at the end of the fiscal year, 

FAA may require you to make further 

good faith efforts, such as modifying 

your race-conscious/race-neutral split or 

introducing additional race-neutral or 

race-conscious measures for the 

remainder of the fiscal year. 

[FR Doc. 2012–14893 Filed 6–19–12; 8:45 am] 

BILLING CODE 4910–9X–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Part 375 

[Docket No. FMCSA–2012–0119] 

RIN 2126–AB52 

Transportation of Household Goods in 

Interstate Commerce; Consumer 

Protection Regulations 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Direct final rule; request for 

comments. 

SUMMARY: The Federal Motor Carrier 

Safety Administration (FMCSA) amends 

the regulations governing the 

transportation of household goods to 

remove an obsolete requirement related 

to collect calls, resolve ambiguities, and 

reduce a regulatory burden on 

household goods motor carriers. 

DATES: This final rule is effective August 

20, 2012, unless an adverse comment, or 

notice of intent to submit an adverse 

comment, is either submitted to the 

above docket via http:// 

www.regulations.gov on or before July 

20, 2012 or reaches the Docket 

Management Facility by that date. If an 

adverse comment, or notice of intent to 

submit an adverse comment, is received 

by July 20, 2012, FMCSA will withdraw 

this direct final rule and publish a 

timely notice of withdrawal in the 

Federal Register. 

ADDRESSES: You may submit comments 

identified by docket number FMCSA– 

2012–0119 using any one of the 

following methods: 

(1) Federal eRulemaking Portal: 

http://www.regulations.gov. 

(2) Fax: 202–493–2251. 

(3) Mail: Docket Management Facility 

(M–30) West Building Ground Floor 

Room W12–140, U.S. Department of 

Transportation, 1200 New Jersey 

Avenue SE., Washington, DC 20590– 

0001. 

(4) Hand Delivery: Same as mail 

address above, between 9 a.m. and 

5 p.m., e.t., Monday through Friday, 

except Federal holidays. The telephone 

number is 202–366–9329. 

To avoid duplication, please use only 

one of these methods. See the ‘‘Public 

Participation and Comments’’ portion of 

the SUPPLEMENTARY INFORMATION section 

below for instructions on submitting 

comments. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Brodie Mack, FMCSA, Household 

Goods Team Leader, Commercial 

Enforcement and Investigations Division 

at (202) 385–2400 or by email at 

brodie.mack@dot.gov. 

SUPPLEMENTARY INFORMATION: 

I. Public Participation and Comments 

If you would like to participate in this 

rulemaking, you may submit comments 

and related materials. All comments 

received will be posted, without change, 

to http://www.regulations.gov and will 

include any personal information you 

have provided. 

A. Submitting Comments 

If you submit a comment, please 

include the docket number for this 

rulemaking (FMCSA–2012–0119), 

indicate the specific section of this 

direct final rule to which each comment 

applies, and provide a reason for each 

suggestion or recommendation. You 

may submit your comments and 

material online, or by fax, mail or hand 

delivery, but please use only one of 

these means. FMCSA recommends that 

you include your name and a mailing 

address, an email address, or a phone 

number in the body of your document 

so that the Agency can contact you if it 

has questions regarding your 

submission. As a reminder, FMCSA will 

only consider adverse comments as 

defined in 49 CFR 389.39(b) and 

explained below. 

To submit your comment online, go to 

http://www.regulations.gov, click on the 

‘‘submit a comment’’ box, which will 

then become highlighted in blue. In the 

‘‘Document Type’’ drop down menu 

select ‘‘Final Rule’’ and insert ‘‘FMCSA– 

2012–0119’’ in the ‘‘Keyword’’ box. 

Click ‘‘Search’’ then click on the balloon 

shape in the ‘‘Actions’’ column. If you 

submit your comments by mail or hand 

delivery, submit them in an unbound 

format, no larger than 8c by 11 inches, 

suitable for copying and electronic 

filing. If you submit them by mail and 

would like to know that they reached 

the Docket Management Facility, please 

enclose a stamped, self-addressed 

postcard or envelope. 

B. Viewing Comments and Documents 

To view comments, as well as 

documents mentioned in this preamble 

as being available in the docket, go to 

http://www.regulations.gov, click on the 

‘‘read comments’’ box, which will then 

become highlighted in blue. In the 

‘‘Keyword’’ box insert ‘‘FMCSA–2012– 

0119’’ and click ‘‘Search.’’ Click the 

‘‘Open Docket Folder’’ in the ‘‘Actions’’ 

column. If you do not have access to the 

Internet, you may also view the docket 

online by visiting the Docket 

Management Facility in Room W12–140 

on the ground floor of the Department 

of Transportation West Building, 1200 

New Jersey Avenue SE., Washington, 

DC 20590, between 9 a.m. and 5 p.m., 

Monday through Friday, except Federal 

holidays. 

C. Privacy Act 

Anyone can search the electronic 

form of 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 a Privacy 

Act notice regarding our public dockets 

in the January 17, 2008, issue of the 

Federal Register (73 FR 3316). 

II. Regulatory Information 

FMCSA publishes this direct final 

rule under 49 CFR 389.39 because the 

Agency determined that the rule is a 

routine and non-controversial 

amendment to 49 CFR part 375. This 

rule clarifies that certain independent 

delivery services are not household 

goods motor carriers, removes an 

obsolete provision requiring household 

goods motor carriers to post notices 

relating to acceptance of collect 

telephone calls, clarifies the Agency’s 

requirement that re-negotiated estimates 

contain detailed descriptions of the 

goods or services that gave rise to the renegotiation, and requires household 

goods motor carriers that relinquish 

possession of goods to permanent 

storage to do so in the shipper’s name. 

If no adverse comments, or notices of 

intent to submit an adverse comment, 

are received by July 20, 2012, this rule 

will become effective as stated in the 

DATES section. In that case, 

approximately 30 days before the 

effective date, FMCSA will publish a 

document in the Federal Register 

stating that no adverse comments were 


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