30898 Federal Register / Vol. 76, No. 103 / Friday, May 27, 2011 / Proposed Rules 

C. Public Comment and Final Action 

Because EPA believes the submitted 

rule fulfills all relevant requirements, 

we are proposing to fully approve it as 

described in section 110(k)(3) of the Act. 

We will accept comments from the 

public on this proposal for the next 30 

days. Unless we receive convincing new 

information during the comment period, 

we intend to publish a final approval 

action that will incorporate this rule 

into the federally enforceable SIP. 

III. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

State choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves State law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address 

disproportionate human health or 

environmental effects with practical, 

appropriate, and legally permissible 

methods under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen dioxide, Ozone, 

Reporting and recordkeeping 

requirements. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: May 19, 2011. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

[FR Doc. 2011–13239 Filed 5–26–11; 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 

Disadvantaged Business Enterprise: 

Program Improvements for Airport 

Concessions 

AGENCY: Office of the Secretary (OST), 

DOT. 

ACTION: Notice of Proposed Rulemaking 

(NPRM). 

SUMMARY: This notice of proposed 

rulemaking (NPRM) proposes 

conforming amendments to the 

Department of Transportation’s Airport 

Concessions Disadvantaged Business 

Enterprise (ACDBE) regulation, 

consistent with recently issued 

amendments in the Department’s 

regulation for the disadvantaged 

business enterprise (DBE) program in 

highway, transit, and airport financial 

assistance programs. 

DATES: Comments on this proposed rule 

must be received by July 26, 2011. 

ADDRESSES: You may submit comments 

(identified by the agency name and DOT 

Docket ID Number OST–2011–0101) 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–2011– 

0101) 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 

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, 

S.E., 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 or Wilbur 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 

published a final rule establishing 

several program improvements to the 

Department’s DBE program rule (49 CFR 

part 26) for financial assistance 

programs (76 FR 5083). This NPRM 

proposes conforming amendments to 

the Department’s companion rule for the 

ACDBE program (49 CFR part 23) for 

several of the Part 26 amendments. The 

rationales for the proposed conforming 

changes to Part 23 are very similar to 


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those for the parallel Part 26 changes, 

and we refer readers to the preamble of 

the Part 26 final rule for information on 

the basis and purpose of the proposed 

changes. 

We note that it is not necessary to 

propose conforming changes to Part 23 

parallel to all of the Part 26 changes. For 

example, it is not necessary to include 

a Part 23 provision parallel to the 

change to § 26.11, concerning the 

frequency of reports, since existing 

§ 23.27(b) already states the appropriate 

reporting frequency for Part 23 reports. 

In addition, many of the Part 26 

amendments apply automatically to Part 

23, because of sections in Part 23 that 

incorporate provisions of Part 26. For 

example, existing § 23.23 incorporates 

the provisions of § 26.31, regarding 

directories, so the changes to § 26.31 

apply in the Part 23 context without 

further amendment to Part 23. Existing 

§ 23.31(a) states that, except where 

otherwise provided in Part 23, the 

certification provisions of §§ 26.61– 

26.91 apply to Part 23. Consequently, 

the amendments to §§ 26.71, 26.73, 

26.81, 26.83, 26.84, and 26.85 

automatically apply under Part 23 as 

well as Part 26. Finally, the existing 

§ 23.25(e)(1)(iv) states that the 

administrative procedures applicable to 

contract goals in §§ 26.51–26.53 apply 

with respect to concession specific 

goals, so the amendment to § 26.51 and 

the amendment to § 26.53 automatically 

apply under Part 23 as well as Part 26. 

In the list that follows, we highlight 

the recent amendments to Part 26 that 

apply automatically under Part 23. 

When these Part 26 sections apply 

under Part 23, the terms ‘‘contractor’’ or 

‘‘subcontractor’’ are understood to mean 

‘‘concessionaire’’ or 

‘‘subconcessionaire.’’ 

• Section 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. 

• Section 26.51: Applied in the 

ACDBE context, this amendment directs 

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

appeared that the race-neutral approach 

was not working. 

• Section 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. 

• Section 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. 

• Section 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. 

• Section 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. 

• Section 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. 

• Section 26.84: This section was 

removed in the recently issued Part 26 

final rule. 

• Section 26.85: This section has been 

removed and replaced with 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. 

Even though the Part 26 amendments 

listed above apply automatically to Part 

23, it is important that these new Part 

26 changes make sense in the ACDBE 

context. Therefore, the Department 

seeks comments on whether there are 

terms or concepts in these recently 

issued Part 26 amendments that need to 

be modified to conform to the Part 23 

context. 

Amended § 26.39, concerning 

fostering small business participation, is 

focused on Federally-assisted 

contracting and associated issues such 

as ‘‘unbundling.’’ For this reason, the 

Department is not proposing at this time 

to include parallel provisions in Part 23, 

though we seek comments on whether 

additional small-business-related 

provisions are needed in the 

concessions context. The changes to 

§ 26.45, concerning project goals, 

likewise apply only to DOT-assisted 

contracting, not concessions. 

In § 23.35, the Department would 

substitute $1.32 million for the current 

$750,000 as the personal net worth 

(PNW) standard. This parallels the 

revision of § 26.67, and is being 

proposed for the same reasons. The Part 

23 PNW provision has been separate 

from the Part 26 PNW provision, so a 

specific Part 23 amendment is needed to 

maintain consistency between the two 

regulations. 

The Part 26 PNW definition differs 

from the Part 23 PNW definition in that 

Part 23 includes an exemption for 

‘‘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.’’ 

Some background regarding the $3 

million (maximum) exemption for 

‘‘other assets * * *’’ can be found in the 

preamble to 49 CFR Part 23, issued 

March 22, 2005. 

In determining whether to include the 

$3 million exclusion, the Department 

noted that one PNW standard for Part 23 

and Part 26 would ‘‘* * * avoid 

concerns about overinclusiveness in the 

program by ensuring that persons who 

would fairly be perceived as too wealthy 

for a program aimed at assisting 

‘disadvantaged’ individuals do not 

participate’’. The Department countered 

‘‘[a]t the same time, the Department is 

sensitive to the concern of commenters 

that a PNW standard at this level 

[$750,000] could inhibit opportunities 

for business owners to enter the 

concessions field and expand existing 

businesses,’’ and it also said that ‘‘[i]n 

the different business context of 

concessions, the Department will add a 

third exclusion.’’ 

The Department recognized in the 

preamble that ‘‘[w]ithout unduly 

expanding the well-accepted $750,000 

standard, this approach will take into 

account individual circumstances and 

avoid the ‘glass ceiling’ effect of an 

across-the-board PNW standard about 

which commenters were concerned’’ 

and ‘‘prevent the eligibility standards 

from becoming too open-ended, 

resulting in the participation of 

individuals so wealthy that it would be 

difficult to justify their inclusion in a 

program aimed at disadvantaged 

individuals, we are adding a $3 million 

cap on this third exclusion * * *’’ 

The Department is aware that the $3 

million exemption from PNW for assets 

used as collateral for a loan has been 

difficult to implement. For example, 

issues arise in applying the exemption 

when part of the loan has been paid 

down. Also, there has been inconsistent 

interpretation as to the necessary 

documentation to support this 

exemption. The Department seeks 

comment on whether this exemption 

should be retained in the definition of 

PNW, deleted altogether, modified, or 


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30900 Federal Register / Vol. 76, No. 103 / Friday, May 27, 2011 / Proposed Rules 

replaced with a different but more 

workable provision aimed to achieve the 

same objective. We would also like 

comments on how to improve the 

definition of this exemption so if 

retained, the exemption can be 

implemented more effectively. 

In § 23.29, we propose to adopt the 

key change we made to § 26.37 

concerning enhanced monitoring of the 

actual performance of work by DBEs or 

ACDBEs. Airports would be responsible 

for reviewing documents and actual onsite performance to ensure that ACDBEs 

were actually performing the work 

committed to them during the 

concession award process. 

This NPRM would revise § 23.57 to 

make its accountability provisions 

parallel to those of the recently 

amended § 26.47(c). Again, the rationale 

for doing so is the same as for Part 26. 

The Department seeks comment on 

whether any further modifications of the 

language of this provision would be 

useful for purposes of the ACDBE 

program. 

Regulatory Analyses and Notices 

Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This is a non-significant regulation for 

purposes of Executive Order 12866 and 

the Department of Transportation’s 

Regulatory Policies and Procedures. The 

proposals involve administrative 

modifications to several provisions of a 

long-existing and well-established 

program, designed to improve the 

program’s implementation. The 

proposals, if made final, would not alter 

the direction of the program, make 

major policy changes, or impose 

significant new costs or burdens. 

Regulatory Flexibility Act 

A number of provisions of the NPRM 

would reduce small business burdens or 

increase opportunities for small 

business. The personal net worth 

change would allow some small 

businesses to remain in the ACDBE 

program for a longer period of time. 

Small recipients would not be required 

to prepare or transmit reports 

concerning the reasons for overall goal 

shortfalls and corrective action steps to 

be taken. Only the 30–50 airports 

receiving the greatest amount of FAA 

financial assistance or enplaning the 

greatest number of passengers would 

have to file these reports. The NPRM 

would not make major policy changes 

that would cause recipients to expend 

significant resources on program 

modifications. For these reasons, the 

Department certifies that the NPRM, if 

made final, would not have a significant 

economic impact 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 proposed rule under the Order and 

have determined that it does not have 

implications for federalism, since it 

merely makes administrative 

modifications to an existing program. It 

does not change the relationship 

between the Department and State or 

local governments, pre-empt State law, 

or impose substantial direct compliance 

costs on those governments. 

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. Therefore, a comment 

is best assured of having its full effect 

if OMB receives it within 30 days of 

publication. 

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. The Department intends to 

obtain current OMB control numbers for 

the new information collection 

requirements resulting from this 

rulemaking action. The OMB control 

number, when assigned, will be 

announced by separate notice in the 

Federal Register. 

It is estimated that the total 

incremental annual burden for the 

information collection requirements in 

this rule is 13,855 hours. 

The following are the information 

collection requirements in this rule: 

Certification of Monitoring (49 CFR 

23.29) 

Each recipient would certify that it 

had conducted post-award monitoring 

of contracts that 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 

monitoring which the regulation already 

requires. 

Respondents: 184 (i.e., airports with 

covered concessions). 

Frequency: 1,071 non-car rental 

concessions; 449 car rental concessions, 

for a total of 1520, or an average of 8.2 

concessions per airport. 

Estimated Burden per Response: 1⁄2

hour. 

Estimated Total Annual Burden: 

6,230 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 reasons for its failure and 

establish corrective steps. Of the 184 

airports covered by this rule, 35 large 

recipients would transmit this analysis 

to DOT; smaller recipients would 

perform the analysis but would not be 

required to submit it to DOT. We 

estimate that about half of recipients 

(92) would be subject to this 

requirement in a given year. 

Respondents: 92. 

Estimated Average Burden per 

Response: 80 hours + 5 additional hours 

for recipients sending report to DOT. 

Estimated Total Annual Burden 

Hours: 7535 (i.e., 7,360 [92 × 80] + 175 

[35 × 5]). 

List of Subjects in 49 CFR Part 23 

Administrative practice and 

procedure, Airports, Civil rights, 

Government contracts, Grant 

programs—transportation, Minority 

businesses, Reporting and record 

keeping requirements. 

Issued this 4th day of May 2011, at 

Washington DC. 

Ray LaHood, 

Secretary of Transportation. 

For the reasons set forth in the 

preamble, the Department of 

Transportation proposes to amend 49 

CFR part 23 as follows: 


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Federal Register / Vol. 76, No. 103 / Friday, May 27, 2011 / Proposed Rules 30901 

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. 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, 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 in your State 

for this purpose. The monitoring to 

which this paragraph refers may be 

conducted in conjunction with 

monitoring of contract performance for 

other purposes (e.g., closeout reviews 

for a contract). 

3. In § 23.35, remove the number 

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

million.’’ 

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

§ 23.45 What are the requirements for 

submitting overall goal information to 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 at least six 

months before executing the concession 

agreement for the new concession 

opportunity. 

5. 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 an Operational 

Evolution Partnership Plan 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 DBE 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 the 

corrective actions to which you have 

committed or 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. 2011–13187 Filed 5–26–11; 8:45 am] 

BILLING CODE 4910–9X–P 


jdjones on DSK8KYBLC1PROD with PROPOSALS-1