[Federal Register Volume 74, Number 66 (Wednesday, April 8, 2009)]
[Proposed Rules]
[Pages 15910-15911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7904]



Office of the Secretary

49 CFR Part 26

[Docket No. OST-2009-0081]
RIN 2105-AD76

Disadvantaged Business Enterprise; Overall Goal Schedule and 

AGENCY: Office of the Secretary (OST), DOT.

ACTION: Notice of proposed rulemaking (NPRM).


SUMMARY: This notice of proposed rulemaking (NPRM) would propose to 
improve administration of the Disadvantaged Business Enterprise (DBE) 
program by calling upon recipients of DOT financial assistance to 
transmit overall goals to the Department for approval every three 
years, rather than annually.

DATES: Comments on this proposed rule must be received by July 7, 2009.

ADDRESSES: You may submit comments (identified by the agency name and 
DOT Docket ID Number OST-2009- ) by any of the following methods:
     Federal eRulemaking Portal: Go to 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- 2009- ) 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 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 www.regulations.gov. Background 
documents and comments received may also be viewed at the U.S. 
Department of Transportation, 1200 New Jersey Ave., SE., 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, [email protected].

    The current DBE rule (49 CFR part 26) requires recipients to submit 
overall goals for review by the applicable DOT operating administration 
on August 1 of each year. The process of setting annual overall goals 
can be time-consuming, particularly given the requirements for public 
participation by the recipient. The Department's experience has been 
that many goals are submitted after the August 1 date, and the 
Department's workload involved in reviewing annual goals from 52 state 
departments of transportation and hundreds of transit authorities and 
airports has often resulted in delays in the Department's response to 
recipients' submissions.
    In the Department's 2005 airport concessions disadvantaged business 
enterprise (ACDBE) regulation (49 CFR part 23), the Department 
established a staggered three-year schedule for the submission by 
airports of ACDBE goals. The purpose of this provision was to better 
manage the workloads of both airports and the Federal Aviation 
Administration (FAA). This approach appears to have been successful in 
achieving that objective, and we are now proposing to establish a 
similar system for Part 26 DBE goals. We seek comment on whether such a 
system should, like its Part 23 counterpart, permit operating 
administrations to grant program waivers for different schedules that 
recipients suggest.
    Under the proposal, each Part 26 recipient would submit an overall 
goal every three years, based on a schedule established by the 
operating administrations. Some recipients would submit a goal in 
August 2009, as per the existing requirement. Others would not submit 
an overall goal until August 2010, and others not until August 2011. 
With respect to airports, FAA would arrange the schedule so that an 
airport would not have to submit both a Part 23 and Part 26 goal in the 
same year. The Department seeks comment on the concept of submitting 
DBE goals every three years as well as the proposed schedules for 
submission. We also seek comment on whether the rule should provide for 
annual reviews of goals or adjustments for new opportunities, similar 
to what is provided in section 23.45 of the airport concessions DBE 

Regulatory Analyses and Notices

    The Department has determined that this action is not considered a 
significant regulatory action for purposes of Executive Order 12866 or 
the Department's regulatory policies and procedures. The NPRM would 
ease administrative burdens on recipients by reducing the frequency of 
overall goal submissions and would improve protections for DBE 
subcontractors by requiring recipient approval of certain contracting 
    The NPRM would affect some small entities, easing administrative 
burdens related to goal submission on any recipients that are 
considered small entities and enhancing contracting process protections 
for DBEs, which are small entities. However, the economic effects of 
these changes on small entities are negligible. For that reason, the 
Department certifies that the NPRM, if made final, would not have a 
significant economic impact on a substantial number of small entities.
    The Department has analyzed this proposed action in accordance with 
the principles and criteria contained in Executive Order 13132, and has 
determined that the proposed amendments are consistent with the 
Executive Order and that no consultation is necessary. This NPRM does 
not propose 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, Highways and 
roads, Mass transportation, Minority business, Reporting and 
recordkeeping requirements.

[[Page 15911]]

    Issued at Washington DC this 25th day of March 2009.
Ray LaHood,
Secretary of Transportation.

    For reasons discussed in the preamble, the Department of 
Transportation proposes to amend Title 49 of the Code of Federal 
Regulations, Part 26, as follows:
    1. The authority citation for 49 CFR part 26 is amended to read as 

    Authority:  23 U.S.C. 324; 42 U.S.C. 2000d et seq.; 49 U.S.C. 
1615, 47107, 47113, 47123; Public Law 105-59, sec. 1101(b).

    2. Revise Sec.  26.45(f)(1) to read as follows:

Sec.  26.45  How do recipients set overall goals?

* * * * *
    (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 FAA, 
FTA, or FHWA, as applicable, and posted on that agency's Web site.
* * * * *
[FR Doc. E9-7904 Filed 4-7-09; 8:45 am]