Federal Register / Vol. 75, No. 22 / Wednesday, February 3, 2010 / Rules and Regulations 5535 

[FR Doc. 2010–2254 Filed 2–2–10; 8:45 am] 

BILLING CODE 6560–50–S 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 26 

[Docket No. OST–2010–0021] 

RIN 2105–AD76 

Participation by Disadvantaged 

Business Enterprises in Department of 

Transportation Financial Assistance 

Programs 

AGENCY: Office of the Secretary (OST), 

DOT. 

ACTION: Final rule. 

SUMMARY: This final rule changes the 

Department of Transportation 

(Department) regulation concerning how 

often recipients of DOT financial 

assistance are required to submit to the 

appropriate DOT operating 

administration for approval the 

methodology and process used to 

establish their overall disadvantaged 

business enterprise (DBE) goal for 

federally funded contracting 

opportunities. Under the rule, recipients 

will submit overall goals for review 

every three years, rather than annually. 

DATES: Effective Date: This rule is 

effective March 5, 2010. 

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., Room W94–302, 

Washington, DC 20590, 202 366–9310, 

Bob.Ashby@dot.gov. 

SUPPLEMENTARY INFORMATION: On April 

8, 2009, the Department published in 

the Federal Register at 74 FR 15910, a 

notice of proposed rulemaking (NPRM) 

inviting public comment on a proposal 

to establish a staggered three-year 

schedule for the submission by DOT 

recipients subject to the regulations at 

49 CFR part 26 of their overall goal for 

DBE participation on DOT-assisted 

contracts. Recipients are currently 

required to make a DBE goal submission 

each year on August 1st. This proposed 

rule change was modeled largely on the 

comparable provision in the airport 

concessions DBE rule in Part 23 of this 

Title, with which the Department has 

had successful experience. 

The Department received 

approximately 27 comments from state 

departments of transportation, airports, 

transit authorities, DBEs, contractor 

associations, and transportation 

consultants. This final rule responds to 

the substantive concerns raised in the 

comments from those who supported or 

opposed the adoption of the proposed 

rule. 

The majority of commenters 

supported the proposed rule change as 

long as recipients are either required to 

conduct annual reviews to account for 

changes that may warrant a 

modification of the overall goal or are 

simply allowed to make adjustments to 

the overall goal during the three-year 

period based on changed circumstances 

without necessarily requiring annual 

reviews. Some of the circumstances or 

conditions that may indicate the need 

for an adjustment include, but are not 

limited to, the collection of new data, a 

significant change in the recipient’s 

DOT assisted contracting program (e.g., 

new contracting opportunities presented 

by the availability of new or different 

grant opportunities), a marked increase 

or decrease in the availability of DBEs 

in the recipient’s contracting market, or 

a significant change in the legal 

standards governing the DBE program. 

Some supporters also thought it 

advisable to give recipients the 

flexibility to request a waiver to set their 

own schedule or to submit an overall 

goal that covers a one-, two-, or threeyear period as appropriate due to the 

nature of the recipient’s contracting 

program. The ability to maintain the 

status quo—i.e., set annual overall 

goals—was an approach strongly 

endorsed by some airports, some 

representatives of the aviation industry, 

and some representatives of general 

contractors. 

The commenters opposed to the 

proposed rule change raised several 

concerns about moving to a three-year 

cycle: (1) The difficulty in estimating a 

DBE goal beyond one year given the 

changes in the political landscape or 

changes in the kind of projects that are 

funded; (2) locking in goals for three 

years undermines the ability to assess 

market conditions and DBE availability; 

(3) requiring annual reviews during the 

three-year period defeats the purpose of 

reducing the administrative burden 

associated with the annual goal setting 

process since an annual review will 

likely result in the need for an 

adjustment and thereby trigger the 

annual goal setting process; and (4) it 

fails to achieve a level playing field or 

ensure narrow tailoring. 

Having considered the comments, the 

Department believes going to a system 

of staggered three-year overall DBE goal 

submissions would not compromise the 

ability of recipients to implement a 

narrowly tailored program and would 

enable recipients to improve the data 

collection, analysis, and consultation 

required to establish an overall goal that 

truly aims to reflect the level of DBE 

participation one would expect absent 

the effects of discrimination. Since the 

DBE program rules were substantially 

revised in 1999, generally we have not 

seen huge variances in the annual DBE 

goal submissions made by recipients 

over the last ten years. Thus, we do not 

assume that requiring an annual review 

would necessarily lead to annual 

adjustments resulting from a process 

that mimics the current yearly process. 

That said, we do not think it necessary 

to mandate annual reviews. Instead, we 

believe recipients or operating 

administrations should be allowed, 

based on changed circumstances, to 

initiate mid-course reviews as needed to 

determine if adjustments to the overall 

goal are warranted. Also, we do not 

think it prudent to allow each recipient 

to establish a different schedule for 

submission. Such a series of exceptions 

would likely swallow the rule. It also 

would make it much more difficult for 

operating administrations to manage 

reviews and oversee compliance. 

However, in those cases where a 

recipient believes its situation differs 

from other similarly situated recipients, 

the existing program waiver process 

offers the recipient the opportunity to 

seek an exception. These program 

waivers, unlike the general program 

waiver provisions of 49 CFR 26.15, 

could be granted by an operating 

administration and would not have to 

be approved by the Secretary. 

Under the final rule, each operating 

administration is required to establish a 

schedule for submissions to be posted 

on its Web site. The schedules are 

intended to be posted no later than 30 

days after the effective date of this rule. 

During the transition to this new 

system, specific notice of the deadline 

for overall goal submissions and the 

consequences of failing to meet the 

deadline should be provided to 

recipients. The schedules established by 

the operating administrations should 

include each year a proportionate or 

representative number of recipients 

from all regions of the country (e.g., 

north, south, east, and west). During the 

transition to the new scheduling system, 

recipients should continuing using or 

operating under the goals last approved 

by the operating administration. 

Regulatory Analyses and Notices 

Executive Order 12866 and Regulatory 

Flexibility Act 

The Department has determined that 

this action is not a significant regulatory 

WReier-Aviles on DSKGBLS3C1PROD with RULES

5536 Federal Register / Vol. 75, No. 22 / Wednesday, February 3, 2010 / Rules and Regulations 

action for purposes of Executive Order 

12866 or the Department’s regulatory 

policies and procedures. The rule would 

not impose any costs or burdens on 

grantees or other parties. It would 

reduce burdens on recipients by 

reducing the frequency of goal 

submissions to the Department. For 

these reasons, the Department certifies 

that the rule would not have a 

significant economic impact on a 

substantial number of small entities. 

Paperwork Reduction Act 

This rule does not create any 

information collection requirements 

covered by the Paperwork Reduction 

Act. 

List of Subjects in 49 CFR Part 26 

Administrative practice and 

procedures, Airports, Civil rights, 

Government contracts, Grant 

programs—transportation, Minority 

business, Reporting and recordkeeping 

requirements. 

Issued this 20th day of January 2010, at 

Washington, DC. 

Ray LaHood, 

Secretary of Transportation. 

■ For the reasons stated in the preamble, 

the Department amends 49 CFR part 26 

as follows: 

PART 26—PARTICIPATION BY 

DISADVANTAGED BUSINESS 

ENTERPRISES IN DEPARTMENT OF 

TRANSPORTATION FINANCIAL 

ASSISTANCE PROGRAMS 

■ 1. The authority for 49 CFR part 26 

continues to read as follows: 

Authority: 23 U.S.C. 324; 42 U.S.C. 2000d, 

et seq.; 49 U.S.C 1615, 47107, 47113, 47123; 

Sec. 1101(b), Pub. L. 105–178, 112 Stat. 107, 

113. 

Subpart C—Goals, Good Faith Efforts, 

and Counting 

■ 2. Revise § 26.45(e) and (f) to read as 

follows: 

§ 26.45 How do recipients set overall 

goals? 

* * * * * 

(e) Once you have determined a 

percentage figure in accordance with 

paragraphs (c) and (d) of this section, 

you should express your overall goal as 

follows: 

(1) If you are an FHWA recipient, as 

a percentage of all Federal-aid highway 

funds you will expend in FHWAassisted contracts in the forthcoming 

three fiscal years. 

(2) If you are an FTA or FAA 

recipient, as a percentage of all FTA or 

FAA funds (exclusive of FTA funds to 

be used for the purchase of transit 

vehicles) that you will expend in FTAor FAA-assisted contracts in the three 

forthcoming fiscal years. 

(3) In appropriate cases, the FHWA, 

FTA or FAA Administrator may permit 

you to express your overall goal as a 

percentage of funds for a particular 

grant or project or group of grants and/ 

or projects. 

(f)(1) If you set overall goals on a 

fiscal year basis, you must submit them 

to the applicable DOT operating 

administration by August 1 at three-year 

intervals, based on a schedule 

established by the FHWA, FTA, or FAA, 

as applicable, and posted on that 

agency’s Web site. You must submit to 

the operating administration for 

approval any significant adjustment you 

make to your goal during the three-year 

period based on changed circumstances. 

The operating administration may direct 

you to undertake a review of your goal 

if necessary to ensure that the goal 

continues to fit your circumstances 

appropriately. 

(2) If you are an FHWA, FTA, or FAA 

recipient and set your overall goal on a 

project or grant basis, you must submit 

the goal for review at a time determined 

by the FHWA, FTA, or FAA 

Administrator. 

(3) Timely submission and operating 

administration approval of your overall 

goal is a condition of eligibility for DOT 

financial assistance. 

(4) If you fail to establish and 

implement goals as provided in this 

section, you are not in compliance with 

this part. If you establish and implement 

goals in a way different from that 

provided in this part, you are not in 

compliance with this part. If you fail to 

comply with this requirement, you are 

not eligible to receive DOT financial 

assistance. 

* * * * * 

[FR Doc. 2010–2294 Filed 2–2–10; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

49 CFR Parts 192 and 195 

[Docket No. PHMSA–2007–27954; Amdt. 

Nos. 192–112 and 195–93] 

RIN 2137–AE28 

Pipeline Safety: Control Room 

Management/Human Factors, 

Correction 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA); DOT. 

ACTION: Final rule; correction. 

SUMMARY: PHMSA is correcting a Final 

Rule that appeared in the Federal 

Register on December 3, 2009. That 

final rule amended the Federal Pipeline 

Safety Regulations to address human 

factors and other aspects of control 

room management for pipelines where 

controllers use supervisory control and 

data acquisition (SCADA) systems, but 

contained errors regarding certain dates, 

both in the preamble and the 

amendments. This document corrects 

those errors. 

DATES: Effective Date: February 3, 2010. 

Applicability Date: This correction is 

applicable beginning February 1, 2010. 

FOR FURTHER INFORMATION CONTACT: For 

technical information contact Byron Coy 

at (609) 989–2180 or by e-mail at 

Byron.Coy@dot.gov. For legal 

information contact Benjamin Fred at 

(202) 366–4400 or by e-mail at 

Benjamin.Fred@dot.gov. All materials in 

the docket may be accessed 

electronically at http:// 

www.regulations.gov. General 

information about PHMSA may be 

found at http://phmsa.dot.gov. 

SUPPLEMENTARY INFORMATION: On 

December 3, 2009, PHMSA published a 

final rule in the Federal Register (74 FR 

63310) entitled ‘‘Pipeline Safety: Control 

Room Management/Human Factors.’’ 

This final rule contained several errors 

regarding certain compliance dates. The 

final rule became effective on February 

1, 2010, and the corrected dates detailed 

in this final rule correction are 

applicable as of February 1, 2010. 

On page 63311 of the preamble to the 

December 3 rule, in the first column in 

the DATES section, the compliance date 

is corrected to read ‘‘Compliance Date: 

An operator must develop control room 

management procedures by August 1, 

2011, and implement the procedures by 

February 1, 2013.’’ 

■ Therefore, in accordance with the 

reasons stated in the preamble, PHMSA 

WReier-Aviles on DSKGBLS3C1PROD with RULES