Rule2024-14318
Disadvantaged Business Enterprise and Airport Concession Disadvantaged Business Enterprise Program Implementation Modifications; Corrections
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 3, 2024
Effective
July 3, 2024
Issuing agencies
Transportation Department
Abstract
The U.S. Department of Transportation (DOT or Department) is correcting a final rule that appeared in the Federal Register on April 9, 2024, concerning the Disadvantaged Business Enterprise (DBE) and Airport Concession Disadvantaged Business Enterprise (ACDBE) program regulations.
Full Text
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<title>Federal Register, Volume 89 Issue 128 (Wednesday, July 3, 2024)</title>
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[Federal Register Volume 89, Number 128 (Wednesday, July 3, 2024)]
[Rules and Regulations]
[Pages 55088-55091]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-14318]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Parts 23 and 26
[Docket No. DOT-OST-2022-0051]
RIN 2105-AE98
Disadvantaged Business Enterprise and Airport Concession
Disadvantaged Business Enterprise Program Implementation Modifications;
Corrections
AGENCY: Office of the Secretary (OST), U.S. Department of
Transportation (DOT or the Department).
ACTION: Correcting amendments.
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SUMMARY: The U.S. Department of Transportation (DOT or Department) is
correcting a final rule that appeared in the Federal Register on April
9, 2024, concerning the Disadvantaged Business Enterprise (DBE) and
Airport Concession Disadvantaged Business Enterprise (ACDBE) program
regulations.
DATES: Effective on July 3, 2024.
FOR FURTHER INFORMATION CONTACT: For questions related to the final
rule or general information about the DBE and ACDBE Program
regulations, please contact Marc D. Pentino, Associate Director,
Disadvantaged Business Enterprise Programs Division, Departmental
Office of Civil Rights, Office of the Secretary, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, Room W78-302, Washington, DC
20590 at <a href="/cdn-cgi/l/email-protection#eedcdedcc3ddd8d8c3d8d7d8d6c1838f9c8dc09e8b809a878081ae8a819ac0898198">202-366-6968/<span class="__cf_email__" data-cfemail="701d1102135e00151e04191e1f30141f045e171f06">[email protected]</span></a> or Lakwame Anyane-Yeboa,
ACDBE and DBE Compliance Lead, Disadvantaged Business Enterprise
Programs Division, Departmental Office of Civil Rights, Office of the
Secretary, U.S. Department of Transportation, 1200 New Jersey Avenue
SE, Room W78-103, Washington, DC 20590, at <a href="/cdn-cgi/l/email-protection#2416141609171212091d1712150b68454f534549410a654a5d454a41097d41464b4564404b500a434b52">202-366-9361/<span class="__cf_email__" data-cfemail="6b270a001c0a060e452a05120a050e46320e09040a2b0f041f450c041d">[email protected]</span></a>. Questions concerning part 23 amendments should be
directed to Marcus England, Office of Civil Rights, National Airport
Civil Rights Policy and Compliance (ACR-4C), Federal Aviation
Administration, 600 Independence Ave. SW, Washington, DC 20591 at <a href="/cdn-cgi/l/email-protection#fdcfcdcfd0cfcbcad0cdc9c5cad2909c8f9e888ed398939a919c9399bd9b9c9cd39a928b">202-267-0487/<span class="__cf_email__" data-cfemail="264b4754455355084348414a4748426640474708414950">[email protected]</span></a> or Nicholas Giles, Office of Civil
Rights, National Airport Civil Rights Policy and Compliance (ACR-4C),
Federal Aviation Administration, 600 Independence Ave. SW, Washington,
DC 20591, at <a href="/cdn-cgi/l/email-protection#536163617e6165647e636163627c3d3a303b3c3f32207d343a3f3620133532327d343c25">202-267-0201/<span class="__cf_email__" data-cfemail="315f5852595e5d50421f56585d5442715750501f565e47">[email protected]</span></a>. Office hours are from
8 a.m. to 4:30 p.m., E.T., Monday through Friday, except Federal
holidays.
SUPPLEMENTARY INFORMATION:
Background
The Department identified technical errors in the Federal Register
Document 2024-05583 published in the Federal Register on April 9, 2024
(89 FR 24898); ``Disadvantaged Business Enterprise and Airport
Concession Disadvantaged Business Enterprise Program Implementation
Modifications''. This document corrects technical/typographical errors.
It also clarifies that the current personal net worth (PNW) limit as of
May 9, 2024 is $2.047 million, as detailed in sections Sec. Sec.
23.35(a) and 26.68(a) and as indicated in the preamble to the final
rule. Adjustments to this limit will start on May 9, 2027, based on the
formula in sections Sec. Sec. 23.35(b), (c) and 26.68(d). For FTA-
assisted programs, FTA Tier II recipients do not need to set goals if
they operate a race-neutral DBE program. Additionally, this document
clarifies that Good Faith Efforts are required in certain situations
described in 26.53(g).
List of Subjects in 49 CFR Part 23 and 26
Administrative practice and procedure, Airports, Civil Rights,
Government contracts, Grant programs--transportation; Mass
transportation, Minority Businesses, Reporting and recordkeeping
requirements.
Accordingly, 49 CFR parts 23 and 26 are corrected by making the
following correcting amendments.
PART 23--PARTICIPATION OF DISADVANTAGED BUSINESS ENTERPRISE IN
AIRPORT CONCESSIONS
0
1. The authority citation for part 23 is revised to read as follows:
Authority: 49 U.S.C. 47107 and 47113; 42 U.S.C. 2000d; 49
U.S.C. 322; E.O. 12138, 44 FR 29637, 3 CFR, 1979 Comp., p. 393.
0
2. Revise Sec. 23.35 to read as follows:
Sec. 23.35 What role do business development and mentor-
prot[eacute]g[eacute] programs have in the DBE program?
(a) An owner whose PNW exceeds $2,047,000 is not presumed
economically disadvantaged.
(b) The Department will adjust the PNW cap by May 9, 2027 by
multiplying $1,600,000 by the growth in total household net worth since
2019 as described by ``Financial Accounts of the United States: Balance
Sheet of Households (Supplementary Table B.101.h)'' produced by the
Board of Governors of the Federal Reserve (<a href="https://www.federalreserve.gov/releases/z1/">https://www.federalreserve.gov/releases/z1/</a>), and normalized by the total
number of households as collected by the Census in ``Families and
Living Arrangements'' (<a href="https://www.census.gov/topics/families/families-and-households.html">https://www.census.gov/topics/families/families-and-households.html</a>) to account for population growth. The Department
will adjust the PNW cap every 3 years on the anniversary of the
adjustment date described in this section. The Department will post the
adjustments on the Departmental Office of Civil Rights' web page,
available at <a href="https://www.Transportation.gov/DBEPNW">https://www.Transportation.gov/DBEPNW</a>. Each such
adjustment will become the currently applicable PNW limit for purposes
of this regulation.
(c) The Department will use formula 1 to this paragraph (c) to
adjust the PNW limit:
Formula 1 to Paragraph (c)
[[Page 55089]]
[GRAPHIC] [TIFF OMITTED] TR03JY24.130
PART 26--PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISES IN
DEPARTMENT OF TRANSPORTATION FINANCIAL ASSISTANCE PROGRAMS
0
3. The authority citation for part 26 continues to read as follows:
Authority: 23 U.S.C. 304 and 324; 42 U.S.C. 2000d, et seq.; 49
U.S.C. 47113, 47123; Sec. 1101(b), Pub. L. 114-94, 129 Stat. 1312,
1324 (23 U.S.C. 101 note); Sec. 150, Pub. L. 115-254, 132 Stat. 3215
(23 U.S.C. 101 note); Pub. L. 117-58, 135 Stat. 429 (23 U.S.C. 101
note).
0
4. Revise Sec. 26.5 section heading to read as follows:
Sec. 26.5 Definitions.
* * * * *
Sec. 26.29 [Amended]
0
5. In Sec. 26.29 amend paragraph (f) by adding the word ``all'' before
text ``lower-tier subcontractors''.
Sec. 26.31 [Amended]
0
6. In Sec. 26.31, in the second sentence of paragraph b, removing the
citation ``Sec. 26.81(n)(1) and (3)'' and adding the citation ``Sec.
26.73(a)'' in its place.
0
7. In Sec. 26.45, revise paragraph (a)(2) to read as follows:
Sec. 26.45 How do recipients set overall goals?
(a) * * *
(2) If you are an FTA Tier II recipient who intends to operate a
race-neutral DBE program, or if you are an FAA recipient who reasonably
anticipates awarding $250,000 or less in FAA prime contract funds in a
Federal fiscal year, you are not required to develop overall goals for
FTA or FAA, respectively, for that Federal fiscal year.
* * * * *
0
8. In Sec. 26.53, revise paragraph (g) to read as follows:
Sec. 26.53 What are the good faith efforts procedures recipients
follow in situations where there are contract goals?
* * * * *
(g) When a DBE subcontractor or any portion of its work is
terminated by the prime contractor as provided in paragraph (f) of this
section, or the firm fails to complete its work on the contract for any
reason, including when work committed to a DBE is not countable or
reduced due to overestimations made prior to award, the prime
contractor must use good faith efforts to include additional DBE
participation to the extent needed to meet the contract goal. The good
faith efforts shall be documented by the contractor. If the recipient
requests documentation under this provision, the contractor shall
submit the documentation within 7 days, which may be extended for an
additional 7 days, if necessary, at the request of the contractor, and
the recipient shall provide a written determination to the contractor
stating whether or not good faith efforts have been demonstrated.
* * * * *
Sec. 26.55 [Amended]
0
9. Amend Sec. 26.55 by:
0
a. In paragraph (e)(2)(ii), by removing the text ``and-operates'' and
adding the text ``and operates'' in its place: and
0
b. In paragraph (e)(2)(iv)(B), by removing the text ``, operating, or
maintaining'' and adding the text ``and operating'' in its place.
0
10. In Sec. 26.65, revise paragraph (b) to read as follows:
Sec. 26.65 Business Size Determinations.
* * * * *
(b) Statutory Cap. Even if a firm is a small business under
paragraph (a) of this section, it is ineligible to perform DBE work on
FHWA or FTA assisted contracts if its affiliated annual gross receipts,
as defined in 13 CFR 121.104, averaged over the firm's previous three
fiscal years exceed $30.72 million (as of March 1, 2024). The
Department will adjust this amount annually and post the adjusted
amount on its website available at <a href="https://www.transportation.gov/">https://www.transportation.gov/</a>
DBEsizestandards.
Sec. 26.67 [Amended]
0
11. In Sec. 26.67, in the last sentence of paragraph (a)(3)(iv),
remove the text ``paragraph (e)'' and add the text ``paragraph (d)'' in
its place.
0
12. In Sec. 26.68, revise paragraphs (a) and (d) to read as follows:
Sec. 26.68 Personal net worth.
(a) General. An owner whose PNW exceeds $2,047,000 is not presumed
economically disadvantaged. The Department will adjust the PNW cap
pursuant to paragraph (d) of this section.
* * * * *
(d) Regulatory adjustments. (1) The Department will adjust the PNW
cap by May 9, 2027 by multiplying $1,600,000 by the growth in total
household net worth since 2019 as described by ``Financial Accounts of
the United States: Balance Sheet of Households (Supplementary Table
B.101.h)'' produced by the Board of Governors of the Federal Reserve
(<a href="https://www.federalreserve.gov/releases/z1/">https://www.federalreserve.gov/releases/z1/</a>), and normalized by the
total number of households as collected by the Census in ``Families and
Living Arrangements'' (<a href="https://www.census.gov/topics/families/families-and-households.html">https://www.census.gov/topics/families/families-and-households.html</a>) to account for population growth. The Department
will adjust the PNW cap every 3 years on the anniversary of the
adjustment date described in this section. The Department will post the
adjustments on the Departmental Office of Civil Rights' web page,
available at <a href="https://www.Transportation.gov/DBEPNW">https://www.Transportation.gov/DBEPNW</a>. Each such
adjustment will become the currently applicable PNW limit for purposes
of this regulation.
(2) The Department will use formula 1 to this paragraph (d)(2) to
adjust the PNW limit:
Formula 1 to Paragraph (d)
[[Page 55090]]
[GRAPHIC] [TIFF OMITTED] TR03JY24.131
* * * * *
0
13. Amend Sec. 26.81 by:
0
a. Revising section heading; and
0
b. In paragraph (d) removing the phrase ``home state'' and adding in
its place the phrase ``Jurisdiction of Original Certification''.
The revision reads as follows:
Sec. 26.81 Unified Certification Programs.
* * * * *
Sec. 26.83 [Amended]
0
14. Amend Sec. 26.83 by:
0
a. In paragraph (c)(2), removing phrase ``provided in Appendix F to
this part'' and adding phrase ``available at <a href="https://transportation.gov/DBEFORMS">https://transportation.gov/DBEFORMS</a>'' in its place;
0
b. In paragraph (d) removing the word ``recipient'' wherever it appears
and adding the word ``certifier'' in its place;
0
c. In paragraph (i) removing the word ``recipient'' and adding the word
``certifier'' in its place; and
0
d. Removing paragraph (l)(2) and redesignating paragraph (l)
introductory text as paragraph (l)(1) and paragraph (l)(1) as paragraph
(l)(2).
Sec. 26.85 [Amended]
0
15. Amend Sec. 26.85 by:
0
a. In paragraph (c)(1), removing the phrase ``A cover letter with its
application that specifies that the DBE is applying for interstate
certification'' and adding the phrase ``A cover letter that specifies
that the DBE is applying for interstate certification'' in its place;
0
b. In paragraph (h)(6),
0
i. Removing the phrase ``this paragraph (h)(6)'' and adding the phrase
``paragraph (h)'' in its place; and
0
ii. Removing the text ``26.87(e)(6) (failure to cooperate)'' and adding
the text ``26.109(c) (failure to cooperate)'' in its place.
0
16. Amend Sec. 26.87 by revising paragraphs (h) and (j) to read as
follows:
Sec. 26.87 Decertification.
* * * * *
(h) Status of firm during proceeding. A DBE remains certified until
the certifier issues a NOD.
* * * * *
(j) Consequences. Decertification has the following effects on
contract and overall goals and DBE participation:
(1) When a prime contractor has made a commitment to use a DBE, but
a subcontract has not been executed before the certifier issues the NOD
as provided for in paragraph (g) of this section, the committed firm
does not count toward the contract goal. The recipient must direct the
prime contractor to meet the contract goal with an eligible DBE or
demonstrate to the recipient that it has made good faith efforts to do
so.
(2) When the recipient has made a commitment to using a DBE prime
contractor, but a contract has not been executed before the certifier
issues the NOD, the decertified firm does not count toward the
recipient's overall DBE goal.
(3) If a prime contractor has executed a subcontract with a DBE
before the certifier issues the NOD, the prime contractor may continue
to receive credit toward the contract goal for the firm's work. In this
case, however, the prime contractor may not extend or add work to the
contract without prior written consent from the recipient.
(4) If a prime contractor has executed a subcontract with a DBE
before the certifier issues the NOD, the prime contractor may continue
to receive credit toward the contract goal as set forth in paragraph
(j)(3) of this section; however, the portion of the decertified firm's
continued performance of the contract must not count toward the
recipient's overall goal.
(5) If the recipient executed a prime contract with a DBE that was
later decertified, the portion of the decertified firm's performance of
the contract remaining after the certifier issued the NOD must not
count toward an overall goal, but the DBE's performance of the contract
may continue to count toward satisfying any contract goal.
(6) The following exceptions apply to this paragraph (j):
(i) If a certifier decertifies a firm solely because it exceeds the
business size standard during the performance of the contract, the
recipient may continue to count the portion of the decertified firm's
performance of the contract remaining after the certifier issued the
NOD toward the recipient's overall goal as well as toward the contract
goal.
(ii) If the certifier decertifies the DBE because it was acquired
by or merged with a non-DBE, the recipient may not continue to count
the portion of the decertified firm's performance on the contract
remaining, after the certifier issued a NOD, toward either the contract
goal or the overall goal, even if a prime contractor has executed a
subcontract with the firm or the recipient has executed a prime
contract with the DBE that was later decertified. In this case, if
eliminating the credit of the decertified firm will affect the prime
contractor's ability to meet the contract goal, the recipient must
direct the prime contractor to subcontract to an eligible DBE to the
extent needed to meet the contract goal or demonstrate to the recipient
that it has made good faith efforts to do so.
Sec. 26.88 [Amended]
0
15. Amend Sec. 26.88 by:
0
a. In paragraph (d)(1)(iii), removing the phrase ``lieu of or in
addition to attending the hearing'' and adding the phrase ``in lieu of
or in addition to attending the hearing'' in its place;
0
b. Redesignating paragraph (d)(6) as paragraph (d)(5);
0
c. In paragraph (e)(1):
0
i. Removing the phrase ``under paragraph (c)(5)(iv)'' and adding the
phrase ``under paragraph (d)(4)(iv) of this section'' in its place; and
0
ii. Removing the phrase ``unless paragraph (d)(2)'' and adding the
phrase ``unless paragraph (e)(2)'' in its place; and
0
d. In paragraph (e)(2)(ii), removing the text ``paragraph (c)(6)'' and
adding the text ``paragraph (d)(5)'' in its place.
[[Page 55091]]
Signed pursuant to authority delegated at 49 CFR 1.27(c) in
Washington, DC.
Subash Iyer,
Acting General Counsel.
[FR Doc. 2024-14318 Filed 7-2-24; 8:45 am]
BILLING CODE 4910-9X-P
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