Disadvantaged Business Enterprise and Airport Concession Disadvantaged Business Enterprise Program Implementation Modifications; Corrections, 55088-55091 [2024-14318]
Download as PDF
<![CDATA[
55088
Federal Register / Vol. 89, No. 128 / Wednesday, July 3, 2024 / Rules and Regulations
List of Subjects in 48 CFR Parts 532 and
552
Government procurement.
Jeffrey A. Koses,
Senior Procurement Executive, Office of
Acquisition Policy, Office of Governmentwide Policy, General Services Administration.
Therefore, GSA amends 48 CFR parts
532 and 552 as set forth below:
■ 1. The authority citation for 48 CFR
parts 532 and 552 continues to read as
follows:
Authority: 40 U.S.C. 121(c).
PART 532—CONTRACT FINANCING
2. Revise section 532.111 to read as
follows:
■
532.111 Contract Clauses for noncommercial purchases.
Construction contracts. Insert the
clause at 552.232–5, Payments under
Fixed-Price Construction Contracts, in
solicitations and contracts when a fixedprice construction contract is
contemplated.
PART 552—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
552.232–1
[Removed and Reserved]
3. Remove and reserve section
552.232–1.
■
552.232–5
[Amended]
4. Amend section 552.232–5 by
removing from the introductory text
‘‘552.111(b)’’ and adding ‘‘532.111’’ in
its place.
■
[FR Doc. 2024–14352 Filed 7–2–24; 8:45 am]
BILLING CODE 6820–61–P
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Parts 23 and 26
[Docket No. DOT–OST–2022–0051]
RIN 2105–AE98
khammond on DSKJM1Z7X2PROD with RULES
Disadvantaged Business Enterprise
and Airport Concession
Disadvantaged Business Enterprise
Program Implementation
Modifications; Corrections
Office of the Secretary (OST),
U.S. Department of Transportation (DOT
or the Department).
ACTION: Correcting amendments.
AGENCY:
The U.S. Department of
Transportation (DOT or Department) is
correcting a final rule that appeared in
SUMMARY:
VerDate Sep<11>2014
18:48 Jul 02, 2024
Jkt 262001
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 202–366–
6968/marc.pentino@dot.gov 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 202–366–
9361/Lakwame.Anyane-Yeboa@dot.gov.
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 202–267–
0487/marcus.england@faa.gov 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 202–
267–0201/nicholas.giles@faa.gov. 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
§§ 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 §§ 23.35(b), (c) and 26.68(d).
For FTA-assisted programs, FTA Tier II
PO 00000
Frm 00068
Fmt 4700
Sfmt 4700
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
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.
■
2. Revise § 23.35 to read as follows:
§ 23.35 What role do business
development and mentor-protégé 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
(https://www.federalreserve.gov/
releases/z1/), and normalized by the
total number of households as collected
by the Census in ‘‘Families and Living
Arrangements’’ (https://
www.census.gov/topics/families/
families-and-households.html) 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
https://www.Transportation.gov/
DBEPNW. 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)
E:\FR\FM\03JYR1.SGM
03JYR1
Federal Register / Vol. 89, No. 128 / Wednesday, July 3, 2024 / Rules and Regulations
55089
Ql-Q4 Average Household Net Worth of Future Year/ Total Households of Future
Future Year PNW Cap
= [$1,600,000] *
Year - - - - - - - - - - - - - - - - - - - - - - - - - - Ql-Q4 Average Household Net worth of2019 ($106,722,704 million/ Total
Households of2019 (128,579)
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).
4. Revise § 26.5 section heading to
read as follows:
■
§ 26.5
*
Definitions.
*
§ 26.29
*
*
*
[Amended]
5. In § 26.29 amend paragraph (f) by
adding the word ‘‘all’’ before text
‘‘lower-tier subcontractors’’.
■
§ 26.31
[Amended]
6. In § 26.31, in the second sentence
of paragraph b, removing the citation
‘‘§ 26.81(n)(1) and (3)’’ and adding the
citation ‘‘§ 26.73(a)’’ in its place.
■ 7. In § 26.45, revise paragraph (a)(2) to
read as follows:
(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.
*
*
*
*
*
§ 26.55
[Amended]
■
khammond on DSKJM1Z7X2PROD with RULES
§ 26.45
goals?
How do recipients set overall
(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.
*
*
*
*
*
■ 8. In § 26.53, revise paragraph (g) to
read as follows:
§ 26.53 What are the good faith efforts
procedures recipients follow in situations
where there are contract goals?
*
*
*
VerDate Sep<11>2014
*
*
18:48 Jul 02, 2024
Jkt 262001
9. Amend § 26.55 by:
a. In paragraph (e)(2)(ii), by removing
the text ‘‘and-operates’’ and adding the
text ‘‘and operates’’ in its place: and
■ b. In paragraph (e)(2)(iv)(B), by
removing the text ‘‘, operating, or
maintaining’’ and adding the text ‘‘and
operating’’ in its place.
■
■
10. In § 26.65, revise paragraph (b) to
read as follows:
■
§ 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 https://
PO 00000
Frm 00069
Fmt 4700
Sfmt 4700
www.transportation.gov/
DBEsizestandards.
§ 26.67
[Amended]
11. In § 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.
■
12. In § 26.68, revise paragraphs (a)
and (d) to read as follows:
■
§ 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 (https://
www.federalreserve.gov/releases/z1/),
and normalized by the total number of
households as collected by the Census
in ‘‘Families and Living Arrangements’’
(https://www.census.gov/topics/
families/families-and-households.html)
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
https://www.Transportation.gov/
DBEPNW. 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)
E:\FR\FM\03JYR1.SGM
03JYR1
ER03JY24.130</GPH>
PART 26—PARTICIPATION BY
DISADVANTAGED BUSINESS
ENTERPRISES IN DEPARTMENT OF
TRANSPORTATION FINANCIAL
ASSISTANCE PROGRAMS
55090
Federal Register / Vol. 89, No. 128 / Wednesday, July 3, 2024 / Rules and Regulations
Ql-Q4 Average Household Net Worth of Future Year/ Total Households of Future
Future Year PNW Cap
Year
= [$1,600,000] *
Ql-Q4 Average Household Net worth of2019 ($106,722,704 million/ Total
Households of2019 (128,579)
*
*
*
*
13. Amend § 26.81 by:
a. Revising section heading; and
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:
■
■
■
§ 26.81
*
*
§ 26.83
Unified Certification Programs.
*
*
*
[Amended]
14. Amend § 26.83 by:
a. In paragraph (c)(2), removing
phrase ‘‘provided in Appendix F to this
part’’ and adding phrase ‘‘available at
https://transportation.gov/DBEFORMS’’
in its place;
■ b. In paragraph (d) removing the word
‘‘recipient’’ wherever it appears and
adding the word ‘‘certifier’’ in its place;
■ c. In paragraph (i) removing the word
‘‘recipient’’ and adding the word
‘‘certifier’’ in its place; and
■ d. Removing paragraph (l)(2) and
redesignating paragraph (l) introductory
text as paragraph (l)(1) and paragraph
(l)(1) as paragraph (l)(2).
■
■
§ 26.85
[Amended]
15. Amend § 26.85 by:
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;
■ b. In paragraph (h)(6),
■ i. Removing the phrase ‘‘this
paragraph (h)(6)’’ and adding the phrase
‘‘paragraph (h)’’ in its place; and
■ ii. Removing the text ‘‘26.87(e)(6)
(failure to cooperate)’’ and adding the
text ‘‘26.109(c) (failure to cooperate)’’ in
its place.
■ 16. Amend § 26.87 by revising
paragraphs (h) and (j) to read as follows:
khammond on DSKJM1Z7X2PROD with RULES
■
■
§ 26.87
Decertification.
*
*
*
*
*
(h) Status of firm during proceeding.
A DBE remains certified until the
certifier issues a NOD.
*
*
*
*
*
VerDate Sep<11>2014
18:48 Jul 02, 2024
Jkt 262001
(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
PO 00000
Frm 00070
Fmt 4700
Sfmt 4700
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.
§ 26.88
[Amended]
15. Amend § 26.88 by:
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;
■ b. Redesignating paragraph (d)(6) as
paragraph (d)(5);
■ c. In paragraph (e)(1):
■ 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
■ ii. Removing the phrase ‘‘unless
paragraph (d)(2)’’ and adding the phrase
‘‘unless paragraph (e)(2)’’ in its place;
and
■ d. In paragraph (e)(2)(ii), removing the
text ‘‘paragraph (c)(6)’’ and adding the
text ‘‘paragraph (d)(5)’’ in its place.
■
■
E:\FR\FM\03JYR1.SGM
03JYR1
ER03JY24.131</GPH>
*
Federal Register / Vol. 89, No. 128 / Wednesday, July 3, 2024 / Rules and Regulations
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
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R1–ES–2020–0076;
FXES1111090FEDR–245–FF09E21000]
RIN 1018–BE71
Endangered and Threatened Wildlife
and Plants; Threatened Species Status
for Mount Rainier White-Tailed
Ptarmigan With a Section 4(d) Rule
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), determine
threatened species status for the Mount
Rainier white-tailed ptarmigan (Lagopus
leucura rainierensis), a bird subspecies
in Washington, under the Endangered
Species Act of 1973, as amended (Act).
This rule adds the subspecies to the List
of Endangered and Threatened Wildlife
and extends the Act’s protections to the
subspecies. We also finalize a rule
under the authority of section 4(d) of the
Act that provides measures that are
necessary and advisable to provide for
the conservation of the Mount Rainier
white-tailed ptarmigan.
DATES: This rule is effective August 2,
2024.
SUMMARY:
This final rule is available
on the internet at https://
www.regulations.gov under Docket No.
FWS–R1–ES–2020–0076 and at https://
www.fws.gov/office/washington-fishand-wildlife. Comments and materials
we received are available for public
inspection at https://
www.regulations.gov under Docket No.
FWS–R1–ES–2020–0076. Supporting
materials we used in preparing this rule,
such as the species status assessment
report, are also available at https://
www.regulations.gov under Docket No.
FWS–R1–ES–2020–0076.
FOR FURTHER INFORMATION CONTACT: Brad
Thompson, State Supervisor, U.S. Fish
and Wildlife Service, Washington Fish
and Wildlife Office, 510 Desmond
Drive, Suite 102, Lacey, WA 98503;
telephone 360–753–9440. Individuals in
the United States who are deaf,
deafblind, hard of hearing, or have a
khammond on DSKJM1Z7X2PROD with RULES
ADDRESSES:
VerDate Sep<11>2014
18:48 Jul 02, 2024
Jkt 262001
speech disability may dial 711 (TTY,
TDD, or TeleBraille) to access
telecommunications relay services.
Individuals outside the United States
should use the relay services offered
within their country to make
international calls to the point-ofcontact in the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under
the Act, a species warrants listing if it
meets the definition of an endangered
species (in danger of extinction
throughout all or a significant portion of
its range) or a threatened species (likely
to become an endangered species within
the foreseeable future throughout all or
a significant portion of its range). If we
determine that a species warrants
listing, we must list the species
promptly and designate the species’
critical habitat to the maximum extent
prudent and determinable. We have
determined that the Mount Rainier
white-tailed ptarmigan meets the Act’s
definition of a threatened species;
therefore, we are listing the Mount
Rainier white-tailed ptarmigan as a
threatened species. Listing a species as
an endangered species or threatened
species can be completed only by
issuing a rule through the
Administrative Procedure Act
rulemaking process (5 U.S.C. 551 et
seq.).
What this document does. This rule
makes final the listing of the Mount
Rainier white-tailed ptarmigan as a
threatened species under the Act and
adopts a rule under section 4(d) of the
Act for the subspecies.
The basis for our action. Under the
Act, we may determine that a species is
an endangered species or threatened
species because of any of five factors:
(A) The present or threatened
destruction, modification, or
curtailment of its habitat or range; (B)
overutilization for commercial,
recreational, scientific, or educational
purposes; (C) disease or predation; (D)
the inadequacy of existing regulatory
mechanisms; or (E) other natural or
manmade factors affecting its continued
existence.
We have determined that the Mount
Rainier white-tailed ptarmigan meets
the definition of a threatened species
due to habitat loss and degradation
resulting from climate change within
the foreseeable future. Rising
temperatures associated with climate
change are expected to have direct and
rapid impacts on individual birds.
Changing habitat conditions, such as
loss of suitable alpine vegetation and
reduced snow quality and quantity, are
PO 00000
Frm 00071
Fmt 4700
Sfmt 4700
55091
expected to cause populations to
decline. This threat and responses are
reasonably foreseeable because some are
already evident in the range of the
subspecies, and the best available
information indicates that the effects of
climate change will continue to alter the
subspecies’ habitat within the
foreseeable future. Furthermore, it is
unlikely that the Mount Rainier whitetailed ptarmigan will adapt to the
changing climate by moving northward
because alpine areas north of the
subspecies’ current range are expected
to undergo similar impacts due to
climate change and any potential
connectivity to areas north of the
current range is expected to decline.
Previous Federal Actions
Please refer to the proposed listing
rule (86 FR 31668; June 15, 2021) for a
detailed description of previous Federal
actions concerning the Mount Rainier
white-tailed ptarmigan.
Peer Review
A species status assessment (SSA)
team prepared an SSA report for Mount
Rainier white-tailed ptarmigan. The
SSA report represents a compilation of
the best scientific and commercial data
available concerning the status of the
subspecies, including the impacts of
past, present, and future factors (both
negative and beneficial) affecting the
subspecies. In accordance with our joint
policy on peer review published in the
Federal Register on July 1, 1994 (59 FR
34270), and our August 22, 2016,
memorandum updating and clarifying
the role of peer review of listing actions
under the Act, we solicited independent
scientific review of the information
contained in the draft SSA report. We
sent the draft SSA report to seven
independent peer reviewers including
scientists with expertise in white-tailed
ptarmigan as well as climate science; we
received three responses. The peer
reviews and the draft SSA report they
commented on can be found at https://
www.regulations.gov. We also sent the
draft SSA report to three agency
partners for review; we received
comments from one agency—the
Washington Department of Fish and
Wildlife. We incorporated the results of
these reviews, as appropriate, into the
2021 SSA report (version 1.0, USFWS
2021, entire), which was the foundation
for the proposed rule and this final rule.
Additionally, new information provided
to us during the public comment period
on the proposed rule was incorporated
into both the final rule as well as
version 2.0 of the SSA report (USFWS
2023, entire). A summary of the peer
review comments and our responses can
E:\FR\FM\03JYR1.SGM
03JYR1
]]>Agencies
[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 [www.gpo.gov]
[FR Doc No: 2024-14318]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 202-366-6968/[email protected] 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 202-366-9361/[email protected]. 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 202-267-0487/[email protected] 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 202-267-0201/[email protected]. 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 (https://www.federalreserve.gov/releases/z1/), and normalized by the total
number of households as collected by the Census in ``Families and
Living Arrangements'' (https://www.census.gov/topics/families/families-and-households.html) 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 https://www.Transportation.gov/DBEPNW. 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 https://www.transportation.gov/
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
(https://www.federalreserve.gov/releases/z1/), and normalized by the
total number of households as collected by the Census in ``Families and
Living Arrangements'' (https://www.census.gov/topics/families/families-and-households.html) 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 https://www.Transportation.gov/DBEPNW. 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 https://transportation.gov/DBEFORMS'' 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
