Determination of Group Eligibility for MBDA Assistance, 14238-14241 [2013-04955]
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Federal Register / Vol. 78, No. 43 / Tuesday, March 5, 2013 / Proposed Rules
MarketingOrdersSmallBusinessGuide.
Any questions about the compliance
guide should be sent to Laurel May at
the previously mentioned address in the
FOR FURTHER INFORMATION CONTACT
section.
A 60-day comment period is provided
to allow interested persons to respond
to this proposal. All written comments
timely received will be considered
before a final determination is made on
this matter.
emcdonald on DSK67QTVN1PROD with PROPOSALS
Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C.
chapter 35), this notice announces
AMS’s intent to request approval from
the Office of Management and Budget
(OMB) for a new information collection
under OMB No. 0581–NEW. It will be
merged with the forms currently
approved under OMB No. 0581–0189
‘‘Generic Fruit Crops.’’
Title: Oranges, Grapefruit, Tangerines,
and Tangelos Grown in Florida;
Marketing Order No. 905.
OMB Number: 0581–NEW.
Type of Request: New Collection.
Abstract: The information
requirements in this request are
essential to carry out the intent of the
Act, to provide the respondents the type
of service they request, and to
administer the Florida citrus marketing
order program.
On July 17, 2012, the Committee
unanimously recommended that all
fresh citrus handlers, covered under the
order, provide the Committee with a list
of all growers whose fruit they handled
each season. This form, titled Handler
Supplier Report, would be submitted
directly to the Committee by handlers
by June 15 of each year.
This information collection would
benefit the facilitation of
communication between the Committee
and the growers. The information
collected would only be used by
authorized representatives of the USDA,
including the AMS Fruit and Vegetable
Program regional and headquarters staff,
and authorized employees of the
Committee. Authorized Committee
employees would be the primary users
of the information, and the AMS would
be the secondary users. The
Committee’s staff would compile the
information and utilize it to distribute
regulatory information, to seek grower
nominations for Committee positions, to
keep fresh growers informed of issues
affecting the fresh segment of the
industry, and to prepare both the annual
report and marketing policy, as required
under the order. All proprietary
information would be kept confidential
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in accordance with the Act and the
order.
The proposed request for new
information collection under the order
is as follows:
PART 905—ORANGES, GRAPEFRUIT,
TANGERINES, AND TANGELOS
GROWN IN FLORIDA
1. The authority citation for 7 CFR
part 905 continues to read as follows:
■
Handler Supplier Report
Authority: 7 U.S.C. 601–674.
Estimate of Burden: Public reporting
burden for this collection of information
is estimated to be an average of 0.33
hours per response.
Respondents: Handlers of fresh
Florida citrus
Estimated Number of Respondents: 45
Estimated Number of Responses per
Respondent: 1
Estimated Total Annual Burden on
Respondents: 14.85 hours
Comments are invited on: (1) Whether
the proposed collection of information
is necessary for the proper performance
of the functions of the agency, including
whether the information will have
practical utility; (2) the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used; (3)
ways to enhance the quality, utility, and
clarity of the information to be
collected; and (4) ways to minimize the
burden of the collection of information
on those who are to respond, including
the use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology.
Comments should reference OMB No.
0581–NEW and the Marketing Order for
Oranges, Grapefruit, Tangerines, and
Tangelos Grown in Florida, and should
be sent to the USDA in care of the
Docket Clerk at the previouslymentioned address or at https://
www.regulations.gov.
All responses to this notice will be
summarized and included in the request
for OMB approval. All comments
received will become a matter of public
record and will be available for public
inspection during regular business
hours at the address of the Docket Clerk
or at https://www.regulations.gov.
If this proposed rule is finalized, this
information collection will be merged
with the forms currently approved
under OMB No. 0581–0189 ‘‘Generic
Fruit Crops.’’
Citrus, Marketing agreements,
Reporting and recordkeeping
requirements.
For the reasons set forth in the
preamble, 7 CFR part 905 is proposed to
be amended as follows:
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2. Section 905.171 is added to read as
follows:
■
§ 905.171
Handler Supplier Report.
Each handler shall furnish a supplier
report to the Committee on an annual
basis. Such reports shall be made on
forms provided by the Committee and
shall include the name and business
address of each grower whose fruit was
shipped or acquired by the handler
during the season. Handlers shall
submit this report to the Committee not
later than June 15 of each season.
Dated: February 27, 2013.
Rex A. Barnes,
Acting Administrator, Agricultural Marketing
Service.
[FR Doc. 2013–04964 Filed 3–4–13; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF COMMERCE
Minority Business Development
Agency
15 CFR Part 1400
[Docket No. 121130667–2667–02]
Determination of Group Eligibility for
MBDA Assistance
Minority Business
Development Agency, Commerce.
ACTION: Response to petition.
AGENCY:
SUMMARY: On January 11, 2012, the
Minority Business Development Agency
(MBDA) received a petition from the
American-Arab Anti-Discrimination
Committee (ADC or Petitioner)
requesting designation of the ArabAmerican community as a socially or
economically disadvantaged group
whose members are eligible for MBDA
assistance. This document announces
MBDA’s determination that the ADC
Petition is not currently supported by
sufficient evidence to establish social or
economic disadvantage as required by
the MBDA regulations and applicable
legal precedent.
FOR FURTHER INFORMATION CONTACT:
Kimberly Marcus, Associate Director for
Legislation, Education, and
Intergovernmental Affairs, Minority
Business Development Agency, 1401
Constitution Ave., Room 5065,
Washington, DC 20230, (202) 482–6272.
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Federal Register / Vol. 78, No. 43 / Tuesday, March 5, 2013 / Proposed Rules
Pursuant
to Executive Order 11625 (E.O. 11625),
MBDA provides management and
technical assistance to minority
business enterprises (MBEs) through its
services and programs. A minority
business enterprise for purposes of E.O.
11625 is defined as a business owned or
controlled by one or more socially or
economically disadvantaged
individuals.1
E. O. 11625 and subsequent MBDA
regulations have designated the
following groups whose members are
currently considered socially or
economically disadvantaged and
therefore eligible to receive MBDA
assistance: 2 Blacks, Puerto-Ricans,
Spanish-speaking Americans, American
Indians, Eskimos and Aleuts, Hasidic
Jews, Asian Pacific Americans, and
Asian Indians.3 In order for a group to
become eligible for MBDA’s services,
the group must submit a petition to
MBDA demonstrating, by a
preponderance of the evidence, that the
group is socially or economically
disadvantaged.4
On May 30, 2012, MBDA published a
notice of proposed rulemaking and a
request for comments in the Federal
Register announcing receipt of a
petition from the ADC seeking
designation of Arab-Americans as a
socially or economically disadvantaged
group and requesting public comment
on this designation.5 In particular, the
notice requested comment on and
evidence concerning the extent to which
Arab-Americans are economically
disadvantaged. Comments were
accepted from the public for a 30 day
period until June 29, 2012, and were
posted with the petition on MBDA’s
Web site.
In response, the Agency received 37
comments. Of these comments, 19 were
in support of ADC’s petition, while 13
expressed opposition, and five were
disqualified for use of offensive or
derogatory language. After careful
SUPPLEMENTARY INFORMATION:
1 15
CFR 1400.1(b) (1984).
Executive Order 11625, sec. 6 (1971); 15
CFR 1400.1(b) and (c) (1984).
3 15 CFR 1400.1(b) and (c) (1984).
4 Id. at § 1400.4(a).
5 Petition for Inclusion of the Arab-American
Community in the Groups Eligible for MBDA
Services, 77 FR 31,765–31,767 (May 30, 2012). If
the applicant has submitted a Petition for formal
designation as a socially or economically
disadvantaged group, ‘‘the Department of
Commerce will publish a notice in the Federal
Register that formal designation of this group will
be considered’’ requesting comments that will help
in making a final determination. See 15 CFR 1400.5.
MBDA extended the deadline for making its
decision until March 1, 2013. See Petition for
Inclusion of the Arab-American Community in the
Groups Eligible for MBDA Services, 77 FR 72254
(December 5, 2012).
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2 See
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review of the application and comments
as well as independent research, MBDA
has determined that the Petition is not
currently supported by sufficient
evidence to prove the necessary
elements of social or economic
disadvantage within the specific
requirements of 15 CFR 1400.4(a) of the
MBDA regulations and applicable case
law.
Procedural Requirements for
Determination of Group Eligibility for
MBDA Assistance
A group applying for designation as
socially or economically disadvantaged
within the meaning of the MBDA
regulations must submit a written
application to the Minority Business
Development Agency containing a
statement of request, a detailed
description of the applicant group
delineating sufficiently distinctive traits
of its members, a brief summary of the
submission, a narrative description of
documentation in support of the claim,
and a conclusion.6 Along with an
adequate petition, MBDA must consider
the comments received and may also
consider any additional information
gathered by the Agency from
independent research.7
On January 11, 2012, the ADC filed a
petition on behalf of the Arab-American
community, requesting that MBDA
designate Arab-Americans as a socially
or economically disadvantaged group.
The Petition defines the Arab-American
group as persons who can trace their
ancestry to one of the Arabic-speaking
countries or areas of the world
categorized as Arab countries.
According to the Petition, these
countries include, but are not limited to:
Algeria, Bahrain, Djibouti, Egypt, Iraq,
Jordan, Kuwait, Lebanon, Libya,
Mauritania, Morocco, Oman, Qatar,
Somalia, Saudi Arabia, Sudan, Syria,
Tunisia, United Arab Emirates, and
Yemen.8 The Petition included Census
data showing 1.2 million Americans
who report Arab ancestry.9 The Petition
also includes a description of unique
cultural and ethnic traits such as
common Arabic language, traditional
6 15
CFR 1400.3 (1984).
at § 1400.5.
8 American-Arab Anti-Discrimination Committee
Petition for Determination of Group Eligibility for
MBDA Assistance (filed, January 11, 2012) at 3
(ADC Petition or Pet.). The Petition also includes
Palestinian-Americans within this group.
9 Pet. at 4 (citing Arab American Institute,
Demographics: Religion (2002 Zogby International
Survey), https://www.aaiusa.org/arabamericans/22/
demographics (last visited December 30, 2011)). See
also De la Cruz, G. Patricia and Brittingham,
Angela. US Census Bureau Census 2000 Brief, The
Arab Population: 2000 (December 2003) available at
https://www.census.gov/prod/2003pubs/c2kbr23.pdf.
7 Id.
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14239
music, unique food, as well as an ArabAmerican press catering to this
community.
As required by its regulations, MBDA
published the Petition in the Federal
Register for 30 days and requested
general comments and comments on
specific social and economic issues
related to Arab-Americans. This is the
first time that MBDA has considered the
inclusion of a group on the basis of
racial or ethnic classification under the
regulations set forth in 15 CFR 1400.1
through 1400.6 MBDA published
several notices extending the time
period for making a decision in order to
consider fully the issues presented by
the Petition, to conduct independent
research, and to consider the
implications of relevant legal
precedent.10 These issues are addressed
below.
Substantive Requirements for Group
Eligibility
For a group to become eligible for
MBDA’s services, it must submit a
petition to MBDA demonstrating, by a
preponderance of the evidence, that the
group is socially or economically
disadvantaged. The regulations at
section 1400.2(b) define socially
disadvantaged persons as ‘‘persons who
have been subjected to cultural, racial or
ethnic prejudice because of their
identity as members of a group without
regard to their individual qualities.’’
Section 1400.2(c) of the regulations
defines economically disadvantaged
persons as ‘‘persons whose ability to
compete in the free enterprise system
has been impaired due to diminished
capital and credit opportunities because
of their identity as members of a group
without regard to their individual
qualities, as compared to others in the
same line of business and competitive
market area.’’ The petition must prove
that the social or economic disadvantage
has produced impediments in the
business world for members of the
group which are not common to all
business people in the same or similar
business and marketplace.
The regulations also set out several
nonexclusive categories of evidence that
will be considered including: national
income level and standard of living
statistical data; evidence of employment
and educational discrimination;
evidence of denial of access to
educational, professional, and social
organizations; the kinds of business
opportunities available to members of
the group; the availability of capital,
technical, and managerial resources;
10 Adarand Constructors, Inc. v. Pena, 515 U.S.
200 (1995).
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emcdonald on DSK67QTVN1PROD with PROPOSALS
and any other evidence of denial of
opportunity or access to those things
that would enable successful
participation in the American economic
system.11 While the petitioner has the
burden of providing sufficient evidence
to meet the standard, MBDA as trier of
fact may gather additional information
which supports or refutes the group’s
request.12
Since the promulgation of the MBDA
regulations, the U.S. Supreme Court
issued its opinion in Adarand v. Pena,
which applied strict scrutiny to
government programs that rely on racial
classifications.13 To the extent that it
applies, strict scrutiny analysis requires
that in order to meet a constitutional
challenge, the program must serve a
compelling government interest and
must be narrowly tailored to serve that
interest. Courts have repeatedly found
that the government has a compelling
government interest in rectifying past
discrimination caused by the
government and in not passively
participating in private systems of
discrimination. To establish that
compelling interest, the government
must show a strong basis in evidence
that a race based program is necessary
to remedy racial or ethnic
discrimination. Courts usually rely on a
showing that includes statistical
evidence of underrepresentation or
underutilization in finding that the
‘‘strong basis in evidence’’ standard has
been met. Therefore, to ensure that its
programs meet constitutional standards
as applicable, MBDA requires a group
seeking eligibility for MBDA programs
to provide substantial evidence of
impediments in the business world to
show a need for extending the program
to that group.
Social or Economic Disadvantage
Evidentiary Standard
In order to establish social or
economic disadvantage for purposes of
MBDA programs, a petition must
present evidence of either social or
economic disadvantage that meets each
prong of the standard set out in the
regulation.
For social disadvantage, the petition
must present evidence establishing that
the group has been subjected to cultural,
racial, or ethnic prejudice because of
their identity as members of a group
without regard to their individual
qualities.14 The petition must show that
the social disadvantage created by such
11 15
CFR 1400.4(b) (1984).
at § 1400.5 (1984).
13 Adarand Constructors, Inc. v. Pena, 515 U.S.
200 (1995).
14 15 CFR 1400.2(b).
12 Id.
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prejudice is chronic, long standing,
substantial, and beyond the control of
the group’s members. Finally, the
evidence must demonstrate that the
social conditions experienced by the
group have produced impediments in
the business world for members of the
group that are not common to those
faced by all business people in the same
or similar businesses or marketplaces.15
For economic disadvantage, the
petition must present evidence
demonstrating that members of the
group have had their ability to compete
in the free enterprise system impaired
due to diminished capital and credit
opportunities because of their identity
as members of the group without regard
to their individual qualities, as
compared to others in the same line of
business and competitive market areas.
The evidence in the petition must
establish that the economic
disadvantage created by such prejudice
is chronic, long standing, substantial,
and beyond the control of the group’s
members, as compared to others in the
same line of business or market area.
Finally, the economic conditions must
have produced impediments in the
business world for the group that are not
common to those faced by all business
people in the same or similar businesses
or marketplaces.16
Application of Standard to ArabAmerican Petition
MDBA has reviewed the evidence
presented in the Petition and the
comments, as well as its own
recognition of barriers Arab-Americans
have faced, and has determined that,
while there is qualitative evidence that
demonstrates that Arab-Americans have
faced significant prejudice in numerous
instances, there is insufficient evidence
that this undeniable prejudice has
impaired their ability to compete in the
free enterprise system due to
diminished capital and credit
opportunities. In addition, the available
evidence does not, for purposes of this
program, adequately show chronic, long
standing, and substantial bias that has
produced impediments in the business
world for members of the group that are
not common to all business people in
the same or similar business and market
place.17
15 Id.
at § 1400.4(a).
§ 1400.4(a).
17 In the absence of sufficient evidence in the
Petition and comments, the Agency searched
sources available to it and was unable to locate the
type of statistical or empirical studies necessary to
establish this element both for purposes of the
regulation and as required to meet constitutional
standards under existing case law.
16 Id.
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The Petitioner adduces evidence that
Arab-Americans have faced significant
prejudice in the form of hate crimes and
other adverse treatment based on
characteristics, distinct clothing, or selfidentification.18 The Petition illustrates
a sharp increase in prejudice since 9/11
by citing the Senate testimony of
Assistant Attorney General Thomas E.
Perez, that ‘‘more than 800 incidents
involving violence, threats, vandalism,
and arson against persons perceived to
be Muslim or to be of Arab, Middle
Eastern, or South Asian origin’’ were
investigated by the Department of
Justice between 2001 and 2011.19 The
testimony also highlights a 1,600
percent increase in reports to the FBI of
discrimination and harassment of ArabAmericans following 9/11. An ADC
report submitted in support of the
Petition demonstrates a rise in the level
of employment discrimination
complaints filed by Arab-Americans in
the period following 9/11 and includes
instances where employees were
released without explanation or were
called derogatory names in the
workplace, which led to their
subsequent resignation.20 This increase
in prejudicial treatment is also
suggested by evidence from the Equal
Employment Opportunity Commission
(EEOC) documenting 1,035 charges filed
under Title VII alleging post-9/11
backlash employment discrimination.21
The Petition and supporting evidence
demonstrates that, in too many
instances, Arab-Americans have faced
prejudice that has resulted in incidents
of violence, assault, and other
undeniably adverse treatment.22 But the
Petition fails to connect this evidence to
a showing of impediments in the
business world for members of the
group that are not common to all
business people in the same or similar
business and marketplace. Nor does the
Petition establish that Arab-Americans
have had their ability to compete in the
18 Pet.
at 15–16, 18, 23–25.
at 17 (citing Statement of Thomas E. Perez,
AAG Civil Rights Division before Senate Judiciary
Subcommittee on the Constitution, Civil Rights, and
Human Rights ‘‘Protecting the Civil Rights of
Muslim Americans’’ March 29, 2011 available at
https://www.judiciary.senate.gov/hearings/
testimony.cfm?id=e655f9e2809e5476862f735da
169475f&wit_id=e655f9e2809e5476862f735da16947
5f-1-0).
20 Id. at 23 (citing 2003–2007 Report on Hate
Crimes and Discrimination against Arab
Americans, American-Arab Anti-Discrimination
Committee Research Institute at 34–38 (2008),
available at https://www.adc.org/PDF/hcr07.pdf).
21 Id. at 25.
22 However, nothing in the forgoing discussion or
any other part of this response to petition should
be construed as MBDA’s acceptance of the
Petition’s assertions that the federal government has
discriminated against Arab-Americans.
19 Id.
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free enterprise system impaired due to
diminished capital and credit
opportunities.
Specifically, the Petition fails to
provide evidence of the type MBDA
requires to establish a relationship
between any discriminatory treatment
and business impediments experienced
by Arab-American businesses as a group
that are not common to all business
people in the same or similar market
place. Section III of the Petition states
that:
Arab-Americans suffer from
discrimination, prejudice and cultural bias in
the workplace. This employment
discrimination has produced obstacles in the
business world for Arab-Americans—both as
employees and entrepreneurs. Members of
the group have no control over such
discrimination. Other entrepreneurs and
individuals, outside of the group, do not
suffer from such discrimination and bias.23
But, the Petition does not substantiate
this assertion by providing evidence to
support the statement, such as statistical
measures of the impact that
employment discrimination complaints
have on Arab-American business
success or workplace attainment. The
EEOC complaints discussed above must
be coupled with an analysis or study of
the impact of discrimination on ArabAmericans in the business world.
In addition, a 2008 Arab American
Institute Foundation study produced
results contrary to the Petitioner’s
arguments. This study found that ArabAmerican households’ mean individual
income is 27% higher than the national
average and that the group shows higher
than average educational attainment.24
These figures are not dispositive, but do
suggest that prejudice Arab-Americans
have faced may not have impacted their
economic opportunities to the extent
necessary to establish that ArabAmericans’ businesses require the
technical and outreach services that
MBDA provides.
The Petition also does not establish
with the necessary type of evidence that
Arab-Americans have experienced
diminished capital and credit
opportunities. The descriptions of
immigration controls, employment
discrimination complaints, and
post-9/11 programs that the Petition
states target Arab-Americans do not
demonstrate that Arab-Americans are
unable to compete in the free enterprise
system due to diminished capital and
credit opportunities. Statistical or
empirical evidence demonstrating a
relationship between the discrimination
suffered by the group and business
impediments, or impaired access to
capital, credit, contracts, and other
business opportunities experienced by
the group is necessary to show the
social or economic conditions required
to qualify the Petitioners for eligibility
for MBDA’s programs that assist
businesses in obtaining access to
capital, credit, contracting, and other
business opportunities. The comments
submitted in support of the Petition
similarly lack this supporting
information.
Accordingly, MBDA does not
currently have sufficient evidence to
recognize the Arab-American
community as a minority group that is
socially or economically disadvantaged
within the specific meaning of the
regulation because the Petition is not
supported by sufficient evidence to
meet the necessary elements of social or
economic disadvantage as required by
15 CFR 1400.4(a) of the MBDA
regulations and applicable case law. As
such, MBDA has returned the Petition to
ADC for further consideration consistent
with this response to petition.
Dated: February 27, 2013.
David Hinson,
Director.
[FR Doc. 2013–04955 Filed 3–4–13; 8:45 am]
ACTION:
14241
Denial of petition.
SUMMARY: EPA is denying a petition to
remove acetonitrile from the list of
chemicals subject to reporting
requirements under section 313 of the
Emergency Planning and Community
Right-to-Know Act of 1986 (EPCRA) and
section 6607 of the Pollution Prevention
Act of 1990 (PPA). EPA has reviewed
the available data on this chemical and
has determined that acetonitrile does
not meet the deletion criterion of
EPCRA section 313(d)(3). Specifically,
EPA is denying this petition because
EPA’s review of the petition and
available information resulted in the
conclusion that acetonitrile meets the
listing criterion of EPCRA section
313(d)(2)(B) due to its potential to cause
death in humans.
FOR FURTHER INFORMATION CONTACT:
Daniel R. Bushman, Environmental
Analysis Division, Office of Information
Analysis and Access (2842T),
Environmental Protection Agency, 1200
Pennsylvania Ave. NW., Washington,
DC 20460; telephone number: 202–566–
0743; fax number: 202–566–0677; email:
bushman.daniel@epa.gov, for specific
information on this notice. For general
information on EPCRA section 313,
contact the Emergency Planning and
Community Right-to-Know Hotline, toll
free at (800) 424–9346 or (703) 412–
9810 in Virginia and Alaska or toll free,
TDD (800) 553–7672, https://
www.epa.gov/epaoswer/hotline/.
SUPPLEMENTARY INFORMATION:
BILLING CODE P
I. General Information
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 372
[EPA–HQ–TRI–2006–0319; FRL–9787–1]
RIN 2025–AA19
A. Does this notice apply to me?
You may be potentially affected by
this action if you manufacture, process,
or otherwise use acetonitrile. Potentially
affected categories and entities may
include, but are not limited to:
Acetonitrile; Community Right-toKnow Toxic Chemical Release
Reporting
Environmental Protection
Agency (EPA).
AGENCY:
emcdonald on DSK67QTVN1PROD with PROPOSALS
Category
Examples of potentially affected entities
Industry .............................
Facilities included in the following NAICS manufacturing codes (corresponding to SIC codes 20 through 39): 311*,
312*, 313*, 314*, 315*, 316, 321, 322, 323*, 324, 325*, 326*, 327, 331, 332, 333, 334*, 335*, 336, 337*, 339*,
111998*, 211112*, 212324*, 212325*, 212393*, 212399*, 488390*, 511110, 511120, 511130, 511140*, 511191,
511199, 512220, 512230*, 519130*, 541712*, or 811490*.
*Exceptions and/or limitations exist for these NAICS codes.
23 Id.
at 21.
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24 Comment of Nicholas Legendre, https://
www.mbda.gov/sites/default/files/
AAPetitioncomments_asof062912.pdf at 56 (citing
13:45 Mar 04, 2013
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Arab American Institute Foundation, Quick Facts
About Arab Americans, https://aai.3cdn.net/
afbc33810b07728c5a_oim6bx98f.pdf).
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]]>Agencies
[Federal Register Volume 78, Number 43 (Tuesday, March 5, 2013)]
[Proposed Rules]
[Pages 14238-14241]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-04955]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Minority Business Development Agency
15 CFR Part 1400
[Docket No. 121130667-2667-02]
Determination of Group Eligibility for MBDA Assistance
AGENCY: Minority Business Development Agency, Commerce.
ACTION: Response to petition.
-----------------------------------------------------------------------
SUMMARY: On January 11, 2012, the Minority Business Development Agency
(MBDA) received a petition from the American-Arab Anti-Discrimination
Committee (ADC or Petitioner) requesting designation of the Arab-
American community as a socially or economically disadvantaged group
whose members are eligible for MBDA assistance. This document announces
MBDA's determination that the ADC Petition is not currently supported
by sufficient evidence to establish social or economic disadvantage as
required by the MBDA regulations and applicable legal precedent.
FOR FURTHER INFORMATION CONTACT: Kimberly Marcus, Associate Director
for Legislation, Education, and Intergovernmental Affairs, Minority
Business Development Agency, 1401 Constitution Ave., Room 5065,
Washington, DC 20230, (202) 482-6272.
[[Page 14239]]
SUPPLEMENTARY INFORMATION: Pursuant to Executive Order 11625 (E.O.
11625), MBDA provides management and technical assistance to minority
business enterprises (MBEs) through its services and programs. A
minority business enterprise for purposes of E.O. 11625 is defined as a
business owned or controlled by one or more socially or economically
disadvantaged individuals.\1\
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\1\ 15 CFR 1400.1(b) (1984).
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E. O. 11625 and subsequent MBDA regulations have designated the
following groups whose members are currently considered socially or
economically disadvantaged and therefore eligible to receive MBDA
assistance: \2\ Blacks, Puerto-Ricans, Spanish-speaking Americans,
American Indians, Eskimos and Aleuts, Hasidic Jews, Asian Pacific
Americans, and Asian Indians.\3\ In order for a group to become
eligible for MBDA's services, the group must submit a petition to MBDA
demonstrating, by a preponderance of the evidence, that the group is
socially or economically disadvantaged.\4\
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\2\ See Executive Order 11625, sec. 6 (1971); 15 CFR 1400.1(b)
and (c) (1984).
\3\ 15 CFR 1400.1(b) and (c) (1984).
\4\ Id. at Sec. 1400.4(a).
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On May 30, 2012, MBDA published a notice of proposed rulemaking and
a request for comments in the Federal Register announcing receipt of a
petition from the ADC seeking designation of Arab-Americans as a
socially or economically disadvantaged group and requesting public
comment on this designation.\5\ In particular, the notice requested
comment on and evidence concerning the extent to which Arab-Americans
are economically disadvantaged. Comments were accepted from the public
for a 30 day period until June 29, 2012, and were posted with the
petition on MBDA's Web site.
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\5\ Petition for Inclusion of the Arab-American Community in the
Groups Eligible for MBDA Services, 77 FR 31,765-31,767 (May 30,
2012). If the applicant has submitted a Petition for formal
designation as a socially or economically disadvantaged group, ``the
Department of Commerce will publish a notice in the Federal Register
that formal designation of this group will be considered''
requesting comments that will help in making a final determination.
See 15 CFR 1400.5. MBDA extended the deadline for making its
decision until March 1, 2013. See Petition for Inclusion of the
Arab-American Community in the Groups Eligible for MBDA Services, 77
FR 72254 (December 5, 2012).
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In response, the Agency received 37 comments. Of these comments, 19
were in support of ADC's petition, while 13 expressed opposition, and
five were disqualified for use of offensive or derogatory language.
After careful review of the application and comments as well as
independent research, MBDA has determined that the Petition is not
currently supported by sufficient evidence to prove the necessary
elements of social or economic disadvantage within the specific
requirements of 15 CFR 1400.4(a) of the MBDA regulations and applicable
case law.
Procedural Requirements for Determination of Group Eligibility for MBDA
Assistance
A group applying for designation as socially or economically
disadvantaged within the meaning of the MBDA regulations must submit a
written application to the Minority Business Development Agency
containing a statement of request, a detailed description of the
applicant group delineating sufficiently distinctive traits of its
members, a brief summary of the submission, a narrative description of
documentation in support of the claim, and a conclusion.\6\ Along with
an adequate petition, MBDA must consider the comments received and may
also consider any additional information gathered by the Agency from
independent research.\7\
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\6\ 15 CFR 1400.3 (1984).
\7\ Id. at Sec. 1400.5.
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On January 11, 2012, the ADC filed a petition on behalf of the
Arab-American community, requesting that MBDA designate Arab-Americans
as a socially or economically disadvantaged group. The Petition defines
the Arab-American group as persons who can trace their ancestry to one
of the Arabic-speaking countries or areas of the world categorized as
Arab countries.
According to the Petition, these countries include, but are not
limited to: Algeria, Bahrain, Djibouti, Egypt, Iraq, Jordan, Kuwait,
Lebanon, Libya, Mauritania, Morocco, Oman, Qatar, Somalia, Saudi
Arabia, Sudan, Syria, Tunisia, United Arab Emirates, and Yemen.\8\ The
Petition included Census data showing 1.2 million Americans who report
Arab ancestry.\9\ The Petition also includes a description of unique
cultural and ethnic traits such as common Arabic language, traditional
music, unique food, as well as an Arab-American press catering to this
community.
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\8\ American-Arab Anti-Discrimination Committee Petition for
Determination of Group Eligibility for MBDA Assistance (filed,
January 11, 2012) at 3 (ADC Petition or Pet.). The Petition also
includes Palestinian-Americans within this group.
\9\ Pet. at 4 (citing Arab American Institute, Demographics:
Religion (2002 Zogby International Survey), https://www.aaiusa.org/arabamericans/22/demographics (last visited December 30, 2011)). See
also De la Cruz, G. Patricia and Brittingham, Angela. US Census
Bureau Census 2000 Brief, The Arab Population: 2000 (December 2003)
available at https://www.census.gov/prod/2003pubs/c2kbr-23.pdf.
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As required by its regulations, MBDA published the Petition in the
Federal Register for 30 days and requested general comments and
comments on specific social and economic issues related to Arab-
Americans. This is the first time that MBDA has considered the
inclusion of a group on the basis of racial or ethnic classification
under the regulations set forth in 15 CFR 1400.1 through 1400.6 MBDA
published several notices extending the time period for making a
decision in order to consider fully the issues presented by the
Petition, to conduct independent research, and to consider the
implications of relevant legal precedent.\10\ These issues are
addressed below.
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\10\ Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
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Substantive Requirements for Group Eligibility
For a group to become eligible for MBDA's services, it must submit
a petition to MBDA demonstrating, by a preponderance of the evidence,
that the group is socially or economically disadvantaged. The
regulations at section 1400.2(b) define socially disadvantaged persons
as ``persons who have been subjected to cultural, racial or ethnic
prejudice because of their identity as members of a group without
regard to their individual qualities.'' Section 1400.2(c) of the
regulations defines economically disadvantaged persons as ``persons
whose ability to compete in the free enterprise system has been
impaired due to diminished capital and credit opportunities because of
their identity as members of a group without regard to their individual
qualities, as compared to others in the same line of business and
competitive market area.'' The petition must prove that the social or
economic disadvantage has produced impediments in the business world
for members of the group which are not common to all business people in
the same or similar business and marketplace.
The regulations also set out several nonexclusive categories of
evidence that will be considered including: national income level and
standard of living statistical data; evidence of employment and
educational discrimination; evidence of denial of access to
educational, professional, and social organizations; the kinds of
business opportunities available to members of the group; the
availability of capital, technical, and managerial resources;
[[Page 14240]]
and any other evidence of denial of opportunity or access to those
things that would enable successful participation in the American
economic system.\11\ While the petitioner has the burden of providing
sufficient evidence to meet the standard, MBDA as trier of fact may
gather additional information which supports or refutes the group's
request.\12\
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\11\ 15 CFR 1400.4(b) (1984).
\12\ Id. at Sec. 1400.5 (1984).
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Since the promulgation of the MBDA regulations, the U.S. Supreme
Court issued its opinion in Adarand v. Pena, which applied strict
scrutiny to government programs that rely on racial
classifications.\13\ To the extent that it applies, strict scrutiny
analysis requires that in order to meet a constitutional challenge, the
program must serve a compelling government interest and must be
narrowly tailored to serve that interest. Courts have repeatedly found
that the government has a compelling government interest in rectifying
past discrimination caused by the government and in not passively
participating in private systems of discrimination. To establish that
compelling interest, the government must show a strong basis in
evidence that a race based program is necessary to remedy racial or
ethnic discrimination. Courts usually rely on a showing that includes
statistical evidence of underrepresentation or underutilization in
finding that the ``strong basis in evidence'' standard has been met.
Therefore, to ensure that its programs meet constitutional standards as
applicable, MBDA requires a group seeking eligibility for MBDA programs
to provide substantial evidence of impediments in the business world to
show a need for extending the program to that group.
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\13\ Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
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Social or Economic Disadvantage Evidentiary Standard
In order to establish social or economic disadvantage for purposes
of MBDA programs, a petition must present evidence of either social or
economic disadvantage that meets each prong of the standard set out in
the regulation.
For social disadvantage, the petition must present evidence
establishing that the group has been subjected to cultural, racial, or
ethnic prejudice because of their identity as members of a group
without regard to their individual qualities.\14\ The petition must
show that the social disadvantage created by such prejudice is chronic,
long standing, substantial, and beyond the control of the group's
members. Finally, the evidence must demonstrate that the social
conditions experienced by the group have produced impediments in the
business world for members of the group that are not common to those
faced by all business people in the same or similar businesses or
marketplaces.\15\
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\14\ 15 CFR 1400.2(b).
\15\ Id. at Sec. 1400.4(a).
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For economic disadvantage, the petition must present evidence
demonstrating that members of the group have had their ability to
compete in the free enterprise system impaired due to diminished
capital and credit opportunities because of their identity as members
of the group without regard to their individual qualities, as compared
to others in the same line of business and competitive market areas.
The evidence in the petition must establish that the economic
disadvantage created by such prejudice is chronic, long standing,
substantial, and beyond the control of the group's members, as compared
to others in the same line of business or market area. Finally, the
economic conditions must have produced impediments in the business
world for the group that are not common to those faced by all business
people in the same or similar businesses or marketplaces.\16\
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\16\ Id. Sec. 1400.4(a).
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Application of Standard to Arab-American Petition
MDBA has reviewed the evidence presented in the Petition and the
comments, as well as its own recognition of barriers Arab-Americans
have faced, and has determined that, while there is qualitative
evidence that demonstrates that Arab-Americans have faced significant
prejudice in numerous instances, there is insufficient evidence that
this undeniable prejudice has impaired their ability to compete in the
free enterprise system due to diminished capital and credit
opportunities. In addition, the available evidence does not, for
purposes of this program, adequately show chronic, long standing, and
substantial bias that has produced impediments in the business world
for members of the group that are not common to all business people in
the same or similar business and market place.\17\
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\17\ In the absence of sufficient evidence in the Petition and
comments, the Agency searched sources available to it and was unable
to locate the type of statistical or empirical studies necessary to
establish this element both for purposes of the regulation and as
required to meet constitutional standards under existing case law.
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The Petitioner adduces evidence that Arab-Americans have faced
significant prejudice in the form of hate crimes and other adverse
treatment based on characteristics, distinct clothing, or self-
identification.\18\ The Petition illustrates a sharp increase in
prejudice since 9/11 by citing the Senate testimony of Assistant
Attorney General Thomas E. Perez, that ``more than 800 incidents
involving violence, threats, vandalism, and arson against persons
perceived to be Muslim or to be of Arab, Middle Eastern, or South Asian
origin'' were investigated by the Department of Justice between 2001
and 2011.\19\ The testimony also highlights a 1,600 percent increase in
reports to the FBI of discrimination and harassment of Arab-Americans
following 9/11. An ADC report submitted in support of the Petition
demonstrates a rise in the level of employment discrimination
complaints filed by Arab-Americans in the period following 9/11 and
includes instances where employees were released without explanation or
were called derogatory names in the workplace, which led to their
subsequent resignation.\20\ This increase in prejudicial treatment is
also suggested by evidence from the Equal Employment Opportunity
Commission (EEOC) documenting 1,035 charges filed under Title VII
alleging post-9/11 backlash employment discrimination.\21\
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\18\ Pet. at 15-16, 18, 23-25.
\19\ Id. at 17 (citing Statement of Thomas E. Perez, AAG Civil
Rights Division before Senate Judiciary Subcommittee on the
Constitution, Civil Rights, and Human Rights ``Protecting the Civil
Rights of Muslim Americans'' March 29, 2011 available at https://www.judiciary.senate.gov/hearings/testimony.cfm?id=e655f9e2809e5476862f735da169475f&wit_id=e655f9e2809e5476862f735da169475f-1-0).
\20\ Id. at 23 (citing 2003-2007 Report on Hate Crimes and
Discrimination against Arab Americans, American-Arab Anti-
Discrimination Committee Research Institute at 34-38 (2008),
available at https://www.adc.org/PDF/hcr07.pdf).
\21\ Id. at 25.
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The Petition and supporting evidence demonstrates that, in too many
instances, Arab-Americans have faced prejudice that has resulted in
incidents of violence, assault, and other undeniably adverse
treatment.\22\ But the Petition fails to connect this evidence to a
showing of impediments in the business world for members of the group
that are not common to all business people in the same or similar
business and marketplace. Nor does the Petition establish that Arab-
Americans have had their ability to compete in the
[[Page 14241]]
free enterprise system impaired due to diminished capital and credit
opportunities.
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\22\ However, nothing in the forgoing discussion or any other
part of this response to petition should be construed as MBDA's
acceptance of the Petition's assertions that the federal government
has discriminated against Arab-Americans.
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Specifically, the Petition fails to provide evidence of the type
MBDA requires to establish a relationship between any discriminatory
treatment and business impediments experienced by Arab-American
businesses as a group that are not common to all business people in the
same or similar market place. Section III of the Petition states that:
Arab-Americans suffer from discrimination, prejudice and
cultural bias in the workplace. This employment discrimination has
produced obstacles in the business world for Arab-Americans--both as
employees and entrepreneurs. Members of the group have no control
over such discrimination. Other entrepreneurs and individuals,
outside of the group, do not suffer from such discrimination and
bias.\23\
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\23\ Id. at 21.
But, the Petition does not substantiate this assertion by providing
evidence to support the statement, such as statistical measures of the
impact that employment discrimination complaints have on Arab-American
business success or workplace attainment. The EEOC complaints discussed
above must be coupled with an analysis or study of the impact of
discrimination on Arab-Americans in the business world.
In addition, a 2008 Arab American Institute Foundation study
produced results contrary to the Petitioner's arguments. This study
found that Arab-American households' mean individual income is 27%
higher than the national average and that the group shows higher than
average educational attainment.\24\ These figures are not dispositive,
but do suggest that prejudice Arab-Americans have faced may not have
impacted their economic opportunities to the extent necessary to
establish that Arab-Americans' businesses require the technical and
outreach services that MBDA provides.
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\24\ Comment of Nicholas Legendre, https://www.mbda.gov/sites/default/files/AAPetitioncomments_asof062912.pdf at 56 (citing Arab
American Institute Foundation, Quick Facts About Arab Americans,
https://aai.3cdn.net/afbc33810b07728c5a_oim6bx98f.pdf).
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The Petition also does not establish with the necessary type of
evidence that Arab-Americans have experienced diminished capital and
credit opportunities. The descriptions of immigration controls,
employment discrimination complaints, and post-9/11 programs that the
Petition states target Arab-Americans do not demonstrate that Arab-
Americans are unable to compete in the free enterprise system due to
diminished capital and credit opportunities. Statistical or empirical
evidence demonstrating a relationship between the discrimination
suffered by the group and business impediments, or impaired access to
capital, credit, contracts, and other business opportunities
experienced by the group is necessary to show the social or economic
conditions required to qualify the Petitioners for eligibility for
MBDA's programs that assist businesses in obtaining access to capital,
credit, contracting, and other business opportunities. The comments
submitted in support of the Petition similarly lack this supporting
information.
Accordingly, MBDA does not currently have sufficient evidence to
recognize the Arab-American community as a minority group that is
socially or economically disadvantaged within the specific meaning of
the regulation because the Petition is not supported by sufficient
evidence to meet the necessary elements of social or economic
disadvantage as required by 15 CFR 1400.4(a) of the MBDA regulations
and applicable case law. As such, MBDA has returned the Petition to ADC
for further consideration consistent with this response to petition.
Dated: February 27, 2013.
David Hinson,
Director.
[FR Doc. 2013-04955 Filed 3-4-13; 8:45 am]
BILLING CODE P
