Federal Register / Vol. 65, No. 221 / Wednesday, November 15, 2000 / Rules and Regulations 68949

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 26

[Docket OST–2000–7640]

RIN 2105–AC89

Participation by Disadvantaged

Business Enterprises in Department of

Transportation Financial Assistance

Programs; Threshold Requirements

and Other Technical Revisions

AGENCY: Office of the Secretary, DOT.

ACTION: Interim final rule; request for

comments.

SUMMARY: This interim final rule revises

the Department’s regulations for its

Disadvantaged Business Enterprise

(DBE) program. This document changes

threshold requirements for Federal

Transit Administration recipients and

Federal Aviation Administration

recipients to establish DBE programs

and submit overall goals. In addition,

this document corrects and clarifies

misleading language in the DBE final

rule. This correction document adds

examples of ways to collect information

required for bidders lists. This

document adds language clarifying that

in order to verify whether a DBE firm

actually performed the work they were

committed, both commitments and

attainments must be tracked and

reported. Finally, this document

corrects potentially misleading language

regarding evidence that must be

considered when setting overall goals.

EFFECTIVE DATE: This interim final rule

is effective November 15, 2000.

Comments concerning this document

are due no later than January 2, 2001.

ADDRESSES: Interested persons should

send comments to Docket Clerk, Docket

No. OST–2000–7640, Department of

Transportation, 400 7th Street, SW,

Room PL–401, Washington, DC 20590.

We request that, in order to minimize

burdens on the docket clerk’s staff,

commenters send three copies of their

comments to the docket. Commenters

wishing to have their submissions

acknowledged should include a

stamped, self-addressed postcard with

their comments. The docket clerk will

date stamp the postcard and return it to

the commenter. Comments will be

available for inspection at the above

address from 10 a.m. to 5 p.m., Monday

through Friday. Comments also may be

sent electronically to the Dockets

Management System (DMS) at the

following Internet address: http://

dms.dot.gov/ at any time. Commenters

who wish to file comments

electronically should follow the

instructions on the DMS web site.

FOR FURTHER INFORMATION CONTACT:

Laura Aguilar, Attorney, Office of

General Counsel for Environmental,

Civil Rights, and General Law,

Department of Transportation, 400

Seventh Street, SW, Room 10102,

Washington, DC 20590; Telephone:

(202) 366–0365.

SUPPLEMENTARY INFORMATION:

1. Substantive Changes

DBE Programs

In Section 26.21(a)(2) of the rule, the

Department states that Federal Transit

Administration (FTA) recipients who

receive $250,000 in a fiscal year in

various forms of FTA assistance must

have a DBE program. Similarly,

subsection (a)(3) requires Federal

Aviation Administration (FAA)

recipients who receive grants of

$250,000 or more in a fiscal year for

airport planning and development to

have a DBE program. The Department is

changing the threshold to $250,000 in

contracting opportunities. The change

requires FTA recipients who project

awarding more than $250,000 in prime

contracts in a Federal fiscal year from

FTA assistance to have a DBE program.

Similarly, FAA recipients who project

awarding more than $250,000 in prime

contracts in a fiscal year from grants for

airport planning and development are

required to submit a plan. Prime

contracts include goods as well as

contracts for services.

The Department is making these

changes to decrease the administrative

burden on small airport and transit

authorities. Many of these transit

authorities and small airports receive

more than $250,000 in FTA or FAA

funds but only have a small amount of

funding for actual contracting

opportunities. For example, FAA grants

funds for land acquisition projects.

While many of these grants exceed

$250,000, the value of contracting

opportunities covered by the DBE

program (e.g., real estate appraisal and

survey) is frequently well below

$250,000. The major portion of the grant

funds is generally for the land purchase

itself, which is not a ‘‘DOT-assisted

contract’’ under the definition of section

26.5.

Therefore, FTA and FAA recipients

who reasonably anticipate awarding

$250,000 or less in prime contracts in a

fiscal year are not required to submit a

DBE plan. This change affects new

recipients or recipients who do not have

a DBE program. The rule would also

reduce burdens on recipients who

already have DBE programs. If such a

recipient anticipates awarding $250,000

or less in prime contracts it would not

have to submit a DBE overall goal for

that year.

Goal Setting

Section 26.45 requires recipients to

submit new goals on August 1 of each

year. Section 26.45 is being revised to

exempt FTA or FAA recipients with

existing DBE programs from setting

updated overall goals when they do not

project awarding prime contracts

exceeding $250,000 (excluding vehicle

transit purchases).

If a recipient is administering a DBE

program, but is a FAA or FTA recipient

who anticipates awarding $250,000 or

less in prime contracts in a Federal

fiscal year, the recipient is not required

to develop overall goals for that fiscal

year. However, the recipient’s existing

DBE program must remain in effect. For

example, the recipient would still

perform certification functions such as

processing applications and obtaining

no-change affidavits. If the recipient

expects to award prime contracts

exceeding $250,000 in the following

fiscal year, it would be required to

timely publish the proposed goal and

submit the goal to the applicable DOT

Operating Administration by August 1.

Although not required, a FAA or FTA

recipient who anticipates awarding

$250,000 or less in prime contracts may

submit a goal for that fiscal year.

However, if a recipient chooses to

submit a goal, it must meet all the

requirements set forth in § 26.45. Of

course, recipients must still seek to meet

the objectives of § 26.1 of this part.

Many recipients may have already

submitted their fiscal year 2001 goal to

the applicable Operating

Administration. If you are a recipient

who submitted your goal, but under the

revisions to this part are not required to

submit a goal, your Operating

Administration will contact you to ask

whether you wish to have your goal in

effect.

2. Technical Changes

Clarification Concerning Bidders Lists

Section 26.11(c) requires recipients to

create and maintain a bidders list

containing information about DBE and

non-DBE contractors and subcontractors

who seek work on a recipient’s

Federally-assisted contracts. The

Department has received a number of

questions regarding the appropriate

method to collect the required

information. Recipients have also

expressed concern with collecting the

annual gross receipts of firms, saying

68950 Federal Register / Vol. 65, No. 221 / Wednesday, November 15, 2000 / Rules and Regulations

that firms have sometimes been

reluctant to share this information.

In discussing this requirement in the

DBE final rule, the Department

recognized the difficulty in identifying

subcontractors, particularly non-DBEs

and all subcontractors that were

unsuccessful in their attempts to obtain

contracts. Consequently, the Department

did not impose any procedural

requirements for how the data is

collected. The Department still believes

that a recipient’s data collection process

should remain flexible. However, we are

amending § 26.11(c) to emphasize the

purpose of the bidders list and by

providing examples of ways in which

recipients may choose to collect the

required data.

The Department is amending

§ 26.11(c)(1) to state that the purpose of

maintaining a bidders list is to provide

the most accurate data possible about

the universe of DBE and non-DBE

contractors and subcontractors who seek

to perform work under a recipient’s

Federally-assisted contracts, for use in

setting overall goals. We are also adding

language stating that a recipient may

collect the required data from all

bidders, before or after the bid due date.

They may also choose to conduct a

survey that will result in a statistically

sound estimate of the universe of DBE

contractors and non-DBE contractors

and subcontractors who seek to perform

work under the recipient’s Federallyassisted contracts. Additionally, we are

clarifying that the data need not come

from the same source. For example, a

recipient may collect name and address

information from all bidders, while

conducting a survey with respect to age

and gross receipts information. The

Department believes that the approach

should remain flexible so that recipients

can choose the least burdensome and

intrusive method.

With regard to a firm’s annual gross

receipts, we are amending the language

in § 26.11(c) to clarify that recipients are

not required to collect the exact dollar

figure from the bidders. Recipients may

ask a firm to indicate into what gross

receipts bracket they fit (e.g., less than

$500,000; $500,000–$1 million; $1–2

million; $2–5 million; etc.) rather than

requesting an exact figure from the

firms. We note that this information on

the size of a firm, as well as information

collected about the firm’s age, should be

helpful to recipients in formulating

narrowly tailored overall goals.

Clarification Concerning Monitoring

and Counting DBE Participation

Section 26.37(b) requires recipients to

have a mechanism to verify that the

work committed to DBEs at contract

award is actually performed by the

DBEs. The language in the final rule

states that recipients must provide for a

running tally of actual DBE attainments.

The preamble to the rule states, ‘‘Under

the final rule, recipients would keep a

running tally of the extent to which, on

each contract, performance had matched

promises.’’ Verifying whether a DBE

actually performed the work to which

they were committed, necessarily

requires the recipient to track both

commitments and attainments.

We are rewording the language in

§ 26.37(b) to state that a recipient’s DBE

program must include a monitoring and

enforcement mechanism to ensure that

work committed to DBEs at contract

award is actually performed by DBEs. In

addition, we are adding a new

paragraph (c) to clarify that a recipient’s

mechanism for providing a running tally

of actual DBE attainments must include

a means of comparing the attainments to

commitments. We are also clarifying

that both awards or commitments and

attainments must be contained in a

recipient’s reports of DBE participation

to the Department. In the forthcoming

DOT uniform reporting form, we will

provide a format for these reports.

Section 26.37(b) requires the

mechanism providing for a running tally

of actual DBE attainments to include a

provision ensuring that the DBE

participation is credited toward overall

or contract goals only when payments

are actually made to DBE firms. Since

this requirement is already stated in

§ 26.55(h), we are removing it from

§ 26.37(b). Furthermore, we believe the

wording of § 26.55(h) is confusing and

we are, therefore, revising it. The point

of the revised language is to emphasize

that actual payment of committed funds

to DBEs is a key element in determining

whether a prime contractor has met its

contract obligations.

Clarification Concerning Goal Setting

In setting overall goals, step 2 requires

that recipients examine all evidence

available in the jurisdiction to

determine what adjustment, if any, is

needed to the base figure. Sec.

26.45(d)(1) specifies information that

must be considered when adjusting the

base figure. Sec. 26.45(d)(2) lists

additional information to be considered,

but uses the language ‘‘you may also

consider.’’ The permissive language may

be misleading. A narrowly tailored

program requires that all relevant

information be considered. We are

merely clarifying that if the information

is available, then it must be considered.

Therefore, to avoid misleading language,

we are changing the wording in

§ 26.45(d)(2) to say, ‘‘if available, you

must consider evidence from related

fields that affect the opportunities for

DBEs to form, grow and compete.’’

3. Interim Final Rule

This rule is being published as an

interim final rule, without prior notice

and opportunity to comment. The

Department believes there is good cause

for finding that providing prior notice

and comment in connection with this

rulemaking action is impracticable,

unnecessary and contrary to the public

interest since it concerns actions

required to be taken on or around

August 1, 2000. See 5 U.S.C. 553(b)(B).

The Department believes it is

important to expedite these revisions in

order to benefit DOT recipients this

year. Under the DBE regulations,

recipients who set their goals on a fiscal

year basis are required to submit their

goals on or around August 1 each year.

In order to reduce administrative

burdens on FTA and FAA entities

receiving $250,000 or less in contracting

opportunities, the rule must be effective

as soon as possible, since August 1 has

passed and recipients are still in the

process of formulating goals and

programs. Therefore, the Department

finds good cause that compliance with

notice and comment procedures in

adoption of this interim final rule would

be impractical, unnecessary and

contrary to the public interest. See 5

U.S.C. 553(b)(B). For the same reasons,

pursuant to 5 U.S.C. 553(d), it is

determined that there is good cause for

the interim final rule to become

effective immediately upon publication.

In addition, this interim final rule

relieves a restriction.

All comments received will be filed in

the docket. The docket is available for

public inspection before and after the

comment closing date. All comments

received on or before the comment

closing date will be considered before

taking final action on this rulemaking.

Comments filed late will be considered

as far as possible without incurring

expense or delay. The provisions of this

interim final rule may be changed in

light of comments received.

Regulatory Analyses and Notices

These revisions to part 26 are not a

significant rule under Executive Order

12866 or the Department’s regulatory

policies and procedures. While the

Regulatory Flexibility Act does not, as

such, apply to rules that do not involve

a notice of proposed rulemaking, the

Department has determined that the

revisions will not have significant

economic impacts on a substantial

number of small entities. In fact, these

revisions decrease costs to some small

Federal Register / Vol. 65, No. 221 / Wednesday, November 15, 2000 / Rules and Regulations 68951

entities. Further, these revisions do not

have Federalism impacts sufficient to

warrant the preparation of a Federalism

impact statement.

List of Subjects in 49 CFR Part 26

Administrative practice and

procedure, Airports, Civil rights,

Government contracts, Grant—

programs—transportation, Mass

transportation, and Minority businesses.

Issued this 6th Day of November, 2000, at

Washington, DC.

Rodney E. Slater,

Secretary of Transportation.

For the reasons set forth 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 citation for 49 CFR

part 26 continues to read as follows:

Authority: 23 U.S.C. 324; 41 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.

2. In § 26.11, revise paragraph (c) to

read as follows:

§ 26.11 What records do recipients keep

and report?

* * * * *

(c) You must create and maintain a

bidders list.

(1) The purpose of this list is to

provide you as accurate data as possible

about the universe of DBE and non-DBE

contractors and subcontractors who seek

to work on your Federally-assisted

contracts for use in helping you set your

overall goals.

(2) You must obtain the following

information about DBE and non-DBE

contractors and subcontractors who seek

to work on your Federally-assisted

contracts:

(i) Firm name;

(ii) Firm address;

(iii) Firm’s status as a DBE or nonDBE;

(iv) Age of the firm; and

(v) The annual gross receipts of the

firm. You may obtain this information

by asking each firm to indicate into

what gross receipts bracket they fit (e.g.,

less than $500,000; $500,000–$1

million; $1–2 million; $2–5 million;

etc.) rather than requesting an exact

figure from the firm.

(3) You may acquire the information

for your bidders list in a variety of ways.

For example, you can collect the data

from all bidders, before or after the bid

due date. You can conduct a survey that

will result in statistically sound

estimate of the universe of DBE and

non-DBE contractors and subcontractors

who seek to work on your Federallyassisted contracts. You may combine

different data collection approaches

(e.g., collect name and address

information from all bidders, while

conducting a survey with respect to age

and gross receipts information).

3. In § 26.21, revise paragraphs (a)(2)

and (a)(3) to read as follows:

§ 26.21 Who must have a DBE program?

(a) * * *

(2) FTA recipients receiving planning,

capital and/or operating assistance who

will award prime contracts (excluding

transit vehicle purchases) exceeding

$250,000 in FTA funds in a Federal

fiscal year;

(3) FAA recipients receiving grants for

airport planning or development who

will award prime contracts exceeding

$250,000 in FAA funds in a Federal

fiscal year.

* * * * *

4. In § 26.37, revise paragraph (b), and

add paragraph (c) to read as follows:

§ 26.37 What are a recipient’s

responsibilities for monitoring the

performance of other program participants?

* * * * *

(b) Your DBE program must also

include a monitoring and enforcement

mechanism to ensure that work

committed to DBEs at contract award is

actually performed by DBEs.

(c) This mechanism must provide for

a running tally of actual DBE

attainments (e.g., payments actually

made to DBE firms), including a means

of comparing these attainments to

commitments. In your reports of DBE

participation to the Department, you

must display both commitments and

attainments.

5. Amend § 26.45 as follows:

a. Revise paragraph (a); and

b. In paragraph (d) (2) at the beginning

of the sentence, remove ‘‘You may also

consider available’’ and substitute ‘‘If

available, you must consider’’ in its

place. The revised text reads as follows:

§ 26.45 How do recipients set overall

goals?

(a)(1) Except as provided in paragraph

(a)(2) of this section, you must set an

overall goal for DBE participation in

your DOT-assisted contracts.

(2) If you are a FTA or FAA recipient

who reasonably anticipates awarding

(excluding transit vehicle purchases)

$250,000 or less in FTA or FAA funds

in prime contracts in a Federal fiscal

year, you are not required to develop

overall goals for FTA or FAA

respectively for that fiscal year.

However, if you have an existing DBE

program, it must remain in effect and

you must seek to fulfill the objectives

outlined in § 26.1.

* * * * *

6. In § 26.55, revise paragraph (h) to

read as follows:

§ 26.55 How is DBE participation counted

toward goals?

* * * * *

(h) Do not count the participation of

a DBE subcontractor toward a

contractor’s final compliance with its

DBE obligations on a contract until the

amount being counted has actually been

paid to the DBE.

§ 26.89 [Amended]

7. In § 26.89(a)(3), remove ‘‘Room

2401’’ and add ‘‘Room 5414’’ in its

place.

[FR Doc. 00–29100 Filed 11–14–00; 8:45 am]

BILLING CODE 4910–62–U

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 622

[Docket No. 991008273–0070–02; I.D.

110900A]

Fisheries of the Caribbean, Gulf of

Mexico, and South Atlantic; Coastal

Migratory Pelagic Resources of the

Gulf of Mexico and South Atlantic; Trip

Limit Reduction

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Trip limit reduction.

SUMMARY: NMFS reduces the

commercial trip limit in the fishery for

king mackerel in the northern Florida

west coast subzone to 500 lb (227 kg) of

king mackerel per day in or from the

exclusive economic zone (EEZ). This

trip limit reduction is necessary to

protect the overfished Gulf king

mackerel resource.

DATES: This rule is effective 12:01 a.m.,

local time, November 12, 2000, through

June 30, 2001, unless changed by further

notification in the Federal Register.

FOR FURTHER INFORMATION CONTACT:

Mark Godcharles, telephone 727–570–

5305, fax 727–570–5583, e-mail:

Mark.Godcharles@noaa.gov.

SUPPLEMENTARY INFORMATION: The

fishery for coastal migratory pelagic fish