15222 Federal Register / Vol. 74, No. 63 / Friday, April 3, 2009 / Rules and Regulations 

II. Provisions of the Final Rule 

This action delays the effective date of 

the December 3, 2008 final rule. The 

effective date of that rule, which would 

have been February 2, 2009, was 

delayed until April 3, 2009 (74 FR 5808) 

and is now delayed until December 31, 

2009. Upon review and consideration of 

the new provisions of CHIPRA and the 

public comments we received during 

the reopened comment period, we 

believe that it may be necessary to 

revise a substantial portion of the 

December 3, 2008 final rule. Therefore, 

to inform future rulemaking on this 

issue, we are delaying the effective date 

a second time to give the public an 

additional opportunity to submit 

additional comments on the policy set 

forth in the December 3, 2008 final rule 

as well as the provisions of CHIPRA, 

discussed above. We anticipate that this 

time period will allow sufficient time 

for CMS to consider such comments and 

develop appropriate revisions to the 

delayed rule. 

IV. Waiver of Proposed Rulemaking 

and Delay in Effective Date 

We ordinarily publish a notice of 

proposed rulemaking in the Federal 

Register to provide a period for public 

comment before the provisions of a 

notice such as this take effect, in 

accordance with section 553(b) of the 

Administrative Procedure Act (APA) (5 

U.S.C. 553(b)). We also ordinarily 

provide a 30-day delay in the effective 

date of the provisions of a notice in 

accordance with section 553(d) of the 

APA (5 U.S.C. 553(d)). However, we can 

waive both the notice and comment 

procedure and the 30-day delay in 

effective date if the Secretary finds, for 

good cause, that it is impracticable, 

unnecessary or contrary to the public 

interest to follow the notice and 

comment procedure or to comply with 

the 30-day delay in the effective date, 

and incorporates a statement of the 

finding and the reasons in the notice. 

This final rule delays the effective 

date of the December 3, 2008 final rule 

that was promulgated through notice 

and comment rulemaking, and does not 

make substantive changes to that final 

rule. Delay in the effective date and 

reopening of the comment period is 

necessary to ensure that the final rule, 

when effective, fully takes into account 

public comments, and conforms to 

recently enacted legislation. We do not 

believe that there will be any adverse 

impact or effect on the public from this 

delay in the effective date. Moreover, it 

would not be in the public interest for 

the underlying rule to go into effect, or 

to have uncertainty about whether it is 

in effect, when the underlying rule does 

not conform to statutory requirements. 

In addition, it is not in the public 

interest to put into effect a rule that we 

intend to revise in a reasonable time 

frame after fully taking into account 

public comment and statutory changes. 

For the reasons stated above, we find 

that both notice and comment 

procedures and the 30-day delay in 

effective date for this final rule are 

unnecessary and contrary to the public 

interest. Therefore, we find there is good 

cause to waive notice and comment 

procedures and the 30-day delay in 

effective date for this final rule. 

(Catalog of Federal Domestic Assistance 

Program No. 93.778, Medical Assistance 

Program) 

Dated: March 25, 2009. 

Charlene Frizzera, 

Acting Administrator, Centers for Medicare 

& Medicaid Services. 

Approved: March 30, 2009. 

Charles E. Johnson, 

Acting Secretary. 

[FR Doc. E9–7505 Filed 4–2–09; 8:45 am] 

BILLING CODE 4120–01–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Parts 23 and 26 

[Docket No. DOT–OST–2009–0074] 

RIN 2105–AD79 

Disadvantaged Business Enterprise 

Program; Inflationary Adjustment 

AGENCY: Office of the Secretary, DOT. 

ACTION: Final rule. 

SUMMARY: Under the statutes governing 

the Department’s Disadvantaged 

Business Enterprise (DBE) Program, 

firms are not considered small business 

concerns and are therefore ineligible as 

DBEs once their average annual receipts 

over the preceding three fiscal years 

reach specified dollar limits. The 

Department of Transportation is 

amending the size limits or gross 

receipts caps to ensure that the 

opportunity of small businesses to 

participate in the Department’s DBE 

programs remains unchanged after 

taking inflation into account. This final 

rule provides 2009 inflation adjustment 

of size limits on small businesses 

participating in the DOT’s 

Disadvantaged Business Enterprise 

programs. 

DATES: This rule is effective April 3, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

Robert C. Ashby, Deputy Assistant 

General Counsel for Regulation and 

Enforcement, Department of 

Transportation, 1200 New Jersey 

Avenue, SE., W94–302, Washington, DC 

20590, phone numbers (202) 366–9310 

(voice), (202) 366–9313 (fax), (202) 755– 

7687 (TTY), bob.ashby@dot.gov (e-mail). 

SUPPLEMENTARY INFORMATION: 

Background 

On April 2, 2007, the Department 

published a final rule revising 49 CFR 

part 23, the regulation governing the 

airport concessions disadvantaged 

business enterprise (ACDBE) program, 

to require that the Department adjust the 

general ACDBE gross receipts cap for 

inflation. That rule also adjusted the 

gross receipts cap for the Department’s 

financial assistance programs in 49 CFR 

part 26. This final rule updates the gross 

receipts cap for the ACDBE program and 

the Department’s financial assistance 

program for 2009. 

The DBE Airport Concession and 

Contracting Programs 

The DOT-assisted contracts DBE rule 

and airport concessions DBE rule are 

based on different statutes. Each statute 

applies to a distinct type of business 

that may seek DOT financial assistance. 

The ACDBE program is designed to give 

business opportunities to certain small 

business concerns that operate at 

airports and that are owned and 

controlled by socially and economically 

disadvantaged individuals. The ACDBE 

program is mandated by 49 U.S.C. 

47107(e), originally enacted in 1987 and 

amended in 1992. 

The DBE program for DOT-assisted 

contracts is a statutory program 

intended to ensure nondiscriminatory 

contracting opportunities for small 

business concerns owned and 

controlled by socially and economically 

disadvantaged individuals in the 

Department’s highway, mass transit and 

airport financial assistance programs. 

The statutory provision governing the 

DBE program in the highway and mass 

transit financial assistance programs is 

1101(b) of the Safe, Accountable, 

Flexible, Efficient Transportation Equity 

Act: A Legacy for Users (SAFETEA–LU), 

Public Law 109–59, August 10, 2005. 

The statutory provision governing the 

DBE program as it relates to the airport 

financial assistance programs is 49 

U.S.C. 47113. 

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 $47,780,000, 


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Federal Register / Vol. 74, No. 63 / Friday, April 3, 2009 / Rules and Regulations 15223 

1See 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. 

then, it is not considered a small 

business eligible to be certified as an 

ACDBE. This final rule adjusts the size 

standards for eligibility as an ACDBE for 

inflation. 

This adjustment compensates for the 

rise in the general level of prices over 

time from the third quarter of 2006 

through the fourth quarter of 2008. In 

order to ensure that this adjustment is 

made on a timely basis in the future, the 

rule was amended to provide for a 

similar adjustment every two years, 

using the same method. At two year 

intervals, the Department is to publish 

a final rule to update the size standard 

numbers. This final rule updates the 

ACDBE gross receipts cap for 2009. 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 

2008 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 indexes.1

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 DBE Program and 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 2008 (140.964) by 2006’s third quarter 

price deflator (128.352). The result of 

the calculation is 1.0982, which 

represents an inflation rate of 1.098% 

from the third quarter of 2006. 

Multiplying the $47,780,000 figure for 

small business enterprises by 1.0982 

equals $52,471,996, which will be 

rounded off to the nearest $10,000, or 

$52,470,000. 

Therefore, under this new rule, if a 

firm’s gross receipts, averaged over the 

firm’s previous three fiscal years, 

exceeds $52,470,000, then it exceeds the 

airport concessions small business size 

limit contained in part 23. 

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 $63,710,000. 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 the 

current year is calculated by dividing 

the price deflator for the fourth quarter 

of 2008 (140.964) by 2006’s third quarter 

price deflator (128.352). The result of 

the calculation is 1.0982, which 

represents an inflation rate of 1.098% 

from the third quarter of 2006. 

Multiplying the $63,710,000 figure for 

car rental companies by 1.0982 equals 

$69,966,322, which will be rounded off 

to the nearest $10,000, or $69,970,000. 

Therefore, under this new rule, if a 

car rental company’s gross receipts, 

averaged over the company’s previous 

three fiscal years, exceeds $69,970,000, 

then it exceeds the airport concessions 

car rental company size limit contained 

in part 23. 

Business Size Standards for the DBE 

DOT Financial Assistance Programs 

This rule also adjusts the gross 

receipts cap for the Department’s 

financial assistance programs in 49 CFR 

part 26. Under the existing rule, if a 

firm’s average annual gross receipts, as 

defined by Small Business 

Administration (SBA) regulations (see 

13 CFR 121.402), over the preceding 

three fiscal years exceed $20,410,000, 

then it cannot qualify as an eligible DBE 

firm. SAFETEA–LU Section 

1101(b)(1)(a) instructs the Secretary of 

Transportation to adjust this amount 

annually for inflation. 

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 2008 (140.964) by 2006’s third quarter 

price deflator (128.352). The result of 

the calculation is 1.0982, which 

represents an inflation rate of 1.098% 

from the third quarter of 2005. 

Multiplying the $20,410,000 figure for 

disadvantaged business enterprises in 

Department of Transportation financial 

assistance programs by 1.0982 equals 

$22,414,262, which will be rounded off 

to the nearest $10,000, or $22,410,000. 

Therefore, if a firm’s gross receipts, 

averaged over the firm’s previous three 

fiscal years, exceeds $22,410,000, then it 

exceeds the small business size limit for 

participation by disadvantaged business 

enterprises in Department of 

Transportation financial assistance 

programs contained in part 26. 

Regulatory Analyses and Notices 

Under the Administrative Procedure 

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

waive the normal notice and comment 

requirements if it finds, for good cause, 

that they are impracticable, 

unnecessary, or contrary to the public 

interest. The Department finds that 

notice and comment for this rule is 

unnecessary and contrary to the public 

interest because it relates only to 

ministerial updates of business size 

standards and gross receipts caps to 

account for inflation, which does not 

change the standards or caps in real 

dollar terms. These updates will assist 

entities attempting to be part of the 

Department’s DBE program and should 

not be unnecessarily delayed. 

Accordingly, the Department finds good 

cause under 5 U.S.C. 553(b)(B) to waive 

notice and opportunity for public 

comment. The Department also finds 

good cause under 5 U.S.C. 553(d)(3) to 

make this rule effective upon 

publication. 

Executive Order 12866 (Regulatory 

Planning and Review) and DOT 

Regulatory Policies and Procedures 

This rule is nonsignificant for 

purposes of the Executive Order 12866 

and the Department of Transportation’s 

Regulatory Policies and Procedures. The 

rule is a ministerial adjustment for 

inflation of a statutory small business 

size standard that does not change the 

standard in real dollar terms. It will not 

impose burdens on any regulated 

parties. In addition, this rule would not 

create a serious 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. 

Regulatory Flexibility Act 

In compliance with the Regulatory 

Flexibility Act (Pub. L. 96–354, 5 U.S.C. 

601–612), we have evaluated the effects 

of this action on small entities and have 

determined that the action will not have 

a significant economic impact on a 

substantial number of small entities. 

Therefore, the Department certifies that 

this rule would not have a significant 

economic impact on a substantial 

number of small entities. 

The rule is a ministerial update to the 

dollar limits and size limits to define 

small businesses for the Department’s 

Airport Concessions Disadvantaged 


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15224 Federal Register / Vol. 74, No. 63 / Friday, April 3, 2009 / Rules and Regulations 

Business Enterprise Program and for the 

Department’s Financial Assistance 

Program for Disadvantaged Business 

Enterprises. The only effect of the rule 

on small entities is to allow some small 

businesses to continue to participate in 

the ACDBE and the DBE programs by 

adjusting for inflation. Therefore, the 

rule will not have a significant 

economic impact on a substantial 

number of small entities. 

Executive Order 13132 (Federalism 

Assessment) 

This action has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132, and the Department has 

determined that this action would not 

have sufficient federalism implications 

to warrant the preparation of a 

federalism assessment. The Department 

has also determined that this action 

would not preempt any State law or 

State regulation or affect the States’ 

ability to discharge traditional State 

governmental functions. 

Executive Order 13084 

This rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13084 (‘‘Consultation and Coordination 

with Indian Tribal Governments’’). 

Because this rule would not 

significantly or uniquely affect the 

Indian tribal communities, and would 

not impose substantial direct 

compliance costs, the funding and 

consultation requirements of the 

Executive Order do not apply. 

Unfunded Mandates Reform Act of 

1995 

This rule does not impose unfunded 

mandates as defined by the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 

104–4; 109 Stat. 48). This rule will not 

result in the expenditure by State, local, 

and tribal governments, in the aggregate, 

or by the private sector, of $128.1 

million or more in any one year (2 

U.S.C. 1532). Further, in compliance 

with the Unfunded Mandates Reform 

Act of 1995, the Department will 

evaluate any regulatory action that 

might be proposed in subsequent stages 

of the proceeding to assess the effects on 

State, local, and tribal governments and 

the private sector. Additionally, the 

definition of ‘‘Federal Mandate’’ in the 

Unfunded Mandates Reform Act 

excludes financial assistance of the type 

in which State, local, or tribal 

governments have authority to adjust 

their participation in the program in 

accordance with changes made in the 

program by the Federal Government. 

Since this rule pertains to a 

nondiscrimination requirement and 

affects only Federal financial assistance 

programs, the Unfunded Mandates Act 

does not apply. 

Executive Order 12372 

(Intergovernmental Review) 

The regulations implementing 

Executive Order 12372 regarding 

intergovernmental consultation on 

Federal programs and activities do not 

apply to this program. 

Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (PRA) (44 U.S.C. 3501), Federal 

agencies must obtain approval from the 

Office of Management and Budget 

(OMB) for each collection of 

information they conduct, sponsor, or 

require through regulations. The 

Department has determined that this 

rule does not contain collection of 

information requirements for the 

purposes of the PRA. 

National Environmental Policy Act 

The Department has analyzed this 

rule for the purpose of the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321–4347) and has determined 

that the inflationary adjustment for 

dollar limits and size limits used to 

define small businesses that can 

participate in the Department’s 

Disadvantaged Business Enterprises 

programs, would not have any effect on 

the quality of the environment. 

Regulation Identification Number 

A regulation identification number 

(RIN) is assigned to each regulatory 

action listed in the Unified Agenda of 

Federal Regulations. The Regulatory 

Information Service Center publishes 

the Unified Agenda in April and 

October of each year. The RIN contained 

in the heading of this document can be 

used to cross reference this action with 

the Unified Agenda. 

List of Subjects 

49 CFR Part 23 

Administrative practice and 

procedure, Airports, Civil rights, 

Concessions, Government contracts, 

Grant programs—transportation, 

Minority businesses, Reporting and 

recordkeeping requirements. 

49 CFR Part 26 

Administrative practice and 

procedure, Airports, Civil rights, 

Concessions, Government contracts, 

Grant programs—transportation, 

Highways and roads, Mass 

transportation, Minority business, 

Reporting and recordkeeping 

requirements. 

■ For the reasons stated in the preamble, 

the Department of Transportation 

amends 49 CFR parts 23 and 26 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. 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 $52.47 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: $69.97 

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. 

PART 26—PARTICIPATION BY 

DISADVANTAGED BUSINESS 

ENTERPRISES IN DEPARTMENT OF 

TRANSPORTATION FINANCIAL 

ASSISTANCE PROGRAMS 

■ 3. The authority citation 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. 

■ 4. Revise § 26.65 to read as follows: 

§ 26.65 What rules govern business size 

determinations? 

(a) To be an eligible DBE, a firm 

(including its affiliates) must be an 

existing small business, as defined by 


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Federal Register / Vol. 74, No. 63 / Friday, April 3, 2009 / Rules and Regulations 15225 

Small Business Administration (SBA) 

standards. As a recipient, you must 

apply current SBA business size 

standard(s) found in 13 CFR part 121 

appropriate to the type(s) of work the 

firm seeks to perform in DOT-assisted 

contracts. 

(b) Even if it meets the requirements 

of paragraph (a) of this section, a firm 

is not an eligible DBE in any Federal 

fiscal year if the firm (including its 

affiliates) has had average annual gross 

receipts, as defined by SBA regulations 

(see 13 CFR 121.402), over the firm’s 

previous three fiscal years, in excess of 

$22.41 million. 

(c) The Department adjusts the 

number in paragraph (b) of this section 

annually using the Department of 

Commerce price deflators for purchases 

by State and local governments as the 

basis for this adjustment. 

Issued this 22nd day of March, 2009, at 

Washington, DC. 

Ray LaHood, 

Secretary of Transportation. 

[FR Doc. E9–7118 Filed 4–2–09; 8:45 am] 

BILLING CODE 4910–9X–P 


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