(d) You can apply for a waiver of any provision of Subpart B or D of
this part including, but not limited to, any provisions regarding
administrative requirements, overall goals, contract goals or good faith
efforts.  Program waivers are for the purpose of authorizing you to
operate an ACDBE program that achieves the objectives of this part by
means that may differ from one or more of the requirements of Subpart B
or D of this part.   To receive a program waiver, you must follow these
procedures:

	(1) You must apply through the FAA.  The application must include a
specific program proposal and address how you will meet the criteria of
paragraph (d)(2) of this section.  Before submitting your application,
you must have had public participation in developing your proposal,
including consultation with the ACDBE community and at least one public
hearing.  Your application must include a summary of the public
participation process and the information gathered through it.

	(2) Your application must show that --

	(i) There is a reasonable basis to conclude that you could achieve a
level of ACDBE participation consistent with the objectives of this part
using different or innovative means other than those that are provided
in Subpart B or D of this part;

	(ii) Conditions at your airport are appropriate for implementing the
proposal;

	(iii) Your proposal would prevent discrimination against any individual
or group in access to concesion opportunities or other benefits of the
program; and

	(iv) Your proposal is consistent with applicable law and FAA program
requirements.

	(3) The FAA Administrator has the authority to approve your
application.  If the Administrator grants your application, you may
administer your ACDBE program as provided in your proposal, subject to
the following conditions:

	(i) ACDBE eligibility is determined as provided in Subpart C of this
part, and ACDBE participation is counted as provided in §§23.53 –
23.55.

	(ii) Your level of ACDBE participation continues to be consistent with
the objectives of this part;

	(iii) There is a reasonable limitation on the duration of the your
modified program; and

	(iv) Any other conditions the Administrator makes on the

grant of the waiver.

	(4) The Administrator may end a program waiver at any time and require
you to comply with this part's provisions.  The Administrator may also
extend the waiver, if he or she determines that all requirements of this
section continue to be met.   Any such extension shall be for no longer
than period originally set for the duration of the program waiver.

The Department may issue exemptions and waivers from provisions of this
part through the procedures of Part 26, §26.15.

Subpart B – ACDBE programs

§23.11  21  Who must submit an ACDBE program to FAA, and when?

	(a) Except as provided in paragraph (e) of this section, if

you are a primary airport that has or was required to have a concessions
DBE program prior to [insert effective date of this part], you must
submit a revisesd ACDBE program meeting the requirements of this part to
the appropriate FAA regional office for approval.

	(1)You must submit this revised program on the same schedule provided
for your first submission of overall goals in §23.3545(a) of this part.

	(2) Timely submission and FAA approval of your revised ACDBE program is
a condition of eligibility for FAA financial assistance.

	(3) Until your new ACDBE program is submitted and approved, you must
continue to implement your concessions DBE program that was in effect
before the effective date of this amendment to part 23Part 23, except
with respect to any provision that is contrary to this part.  .

	(b) If you are a primary airport that does not now have a DBE
concessions program, and you apply for a grant of FAA funds of $250,000
or more for airport planning and development under 49 U.S.C. 47107 et
seq., you must submit an ACDBE program to the FAA at the time of your
application.  Timely submission and FAA approval of your ACDBE program
is aare conditions of eligibility for FAA financial assistance.

	(c).  If you are the owner of more than one airport that is required to
have an ACDBE program, you may implement one plan for all your
locations.  If you do so, you must establish a separate ACDBE goal for
each location.

	(d) If you make any significant changes to your ACDBE program at any
time, you must provide the amended program to the FAA for approval
before implementing the changes.

	(e) If you are a recipient less than $250,000 in FAA for airport
planning and development under 49 U.S.C. 47107 et seq. for a primary
airport, or you are a non-primary airport, non-commercial service
airport, a general aviation airport,  reliever airport, or any other
airport that does not have scheduled commercial service, you are not
required to have an ACDBE program.  However, you must take appropriate
outreach steps to encourage available ACDBEs to participate as
concessionaires whenever there is a concession opportunity.

§23.13  23  What administrative provisions must be in a recipient’s
ACDBE program?

	(a) If, as a recipient that must have an ACDBE program, the program
must include provisions for a policy statement, liaison officer,  and
directory, as provided in Part 26, §§26.23, 26.25, and 26.31, as well
as certification of ACDBEs as provided by Subpart C of this Part.   You
must include a statement in your program committing you to operating
your ACDBE program in a nondiscriminatory manner.

(b) You may combine your provisions for implementing these requirements
under this part and Part 26 (e.g., a single policy statement can cover
both Federally-assisted airport contracts and concessions; the same
individual can act as the liaison officer for both part 23Part 23 and
part 26Part 26 matters).

§23.15   25   What measures must recipients include in their ACDBE
programs to ensure nondiscriminatory participation of ACDBEs in
concessions and other covered activities?

	(a) You must include in your ACDBE program a narrative description of
the types of measures you intend to make to ensure nondiscriminatory
participation of ACDBEs in concession and other covered activities.

(b) Your ACDBE program must provide for setting goals consistent with
the requirements of Subpart D of this part.

(c) Your ACDBE program must provide for seeking ACDBE participation in
all types of concession activities, rather than concentrating
participation in one category or a few categories to the exclusion of
others.

	(d) Your ACDBE program must include race-neutral measures that you will
take.  You must maximize the use of race-neutral measures, obtaining as
much as possible of the ACDBE participation needed to meet overall goals
through such measures.  These are responsibilities that you directly
undertake as a recipient, in addition to the efforts that
concessionaires make, to obtain ACDBE participation. The following are
examples of race-neutral measures you can implement:

(1)  Locating and identifying ACDBEs and other small businesses who may
be interested in participating as concessionaires under this part;

	(2)  Notifying ACDBEs of concession opportunities and encouraging them
to compete, when appropriate;

	(3)  When practical, structuring concession activities so as to
encourage and facilitate the participation of ACDBEs

	(4)  Providing technical assistance to ACDBEs in overcoming
limitations, such as inability to obtain bonding or financing;

		(5) Ensuring that competitors for concession opportunities are
informed during pre-solicitation meetings about how the recipient’s
ACDBE program will affect the procurement process;

(6)Providing information concerning the availability of ACDBE firms to
competitors to assist them in obtaining ACDBE participation; and

 (7) Establishing a business development program (see Part 26, §26.35);
technical assistance program; or taking other steps to foster ACDBE
participation in concessions.

	(e) Your ACDBE program must also provide for the use of race-conscious
measures when race-neutral measures, standing alone, are not projected
to be sufficient to meet an overall goal. The following are examples of
race-conscious measures you can implement:

		(1) Establishing concession-specific goals for particular concession
opportunities.

	(i) If the objective of the concession-specific goal is to obtain ACDBE
participation through a direct ownership arrangement with a ACDBE,
calculate the goal as a percentage of the total estimated annual gross
receipts from the concession.

	(ii)  If the goal applies to purchases and/or leases of goods and
services, calculate the goal by dividing the estimated dollar value of
such purchases and/or leases from ACDBEs by the total estimated dollar
value of all purchases to be made by the concessionaire.

	(iii) To be eligible to be awarded the concession, competitors must
make good faith efforts to meet this goal.  A competitor may do so
either by obtaining enough ACDBE participation to meet the goal or by
documenting that they it made sufficient good faith efforts to do so.

	(iv) The administrative procedures applicable to contract goals in Part
26, §26.51-53, apply with respect to concession-specific goals.

	            (2) Negotiation with a potential concessionaire to include
ACDBE participation, through direct ownership arrangements or measures,
in the operation of the concession.

		(3) With the prior approval of FAA, other methods that take a
competitor’s ability to provide ACDBE participation into account in
awarding a concession.

	(f) 	Your ACDBE program must require businesses subject to ACDBE goals
at the airport (except car rental companies)  to make good faith efforts
to explore all available options to meet goals, to the maximum extent
practicable, through direct ownership arrangements with DBEs.

	(fg)  As provided in §23.61 of this part, You you must not use
set-asides and quotas. as means of obtaining ACDBE participation.

§23.17  27  What information does a recipient have to retain and report
about implementation of its ACDBE program?

	(a) As a recipient, you must retain sufficient basic information about
your program implementation, your certification of ACDBEs, and the award
and performance of agreements and contracts to enable the FAA to
determine your compliance with this part.  You must retain this data for
a minimum  of three years following the end of the concession agreement
or other covered contract.

(b) Beginning December 1, 2004March 1, 2006, you must submit an annual
report on ACDBE participation using the form found in Appendix A to this
part.  You must submit the report to the appropriate FAA Regional Civil
Rights Office.

§23.19  29  What monitoring and compliance procedures must  recipients
follow?

	(a) As a recipient, you must implement appropriate mechanisms to ensure
compliance with the requirements of this part by all participants in the
program.  You must include in your concession program the specific
provisions to be inserted into concession agreements and management
contracts, the enforcement mechanisms, and other means you use to ensure
compliance.  These provisions must include a monitoring and enforcement
mechanism to verify that the work committed to ACDBEs is actually
performed by the ACDBEs.  Your program must describe in detail the level
of effort and resources devoted to monitoring and enforcement.

	(b) This part does not authorize or preclude you from imposing
additional requirements on firms engaged, or seeking to be engaged, in
contracting or concession activities at your airport.  However, you must
include in your concession program a description, together with a
citation of state or local law, regulation, or policy, to support such
an additional requirement.

Subpart C – Certification and Eligibility of ACDBEs

§23.21  31  What certification standards and procedures do recipients
use to certify ACDBEs?

(a) As a recipient, you must use, except as provided in this subpart,
the procedures and standards of Part 26, §§26.61-91 for certification
of ACDBEs to participate in your concessions program.   Your ACDBE
program must incorporate the use of these standards and procedures and
must provide that certification decisions for ACDBEs will be made by the
Unified Certification Program (UCP) in your state (see Part 26,
§26.81).

(b)  The UCP’s directory of eligible DBEs must specify whether a firm
is certified as a DBE for purposes of Part 26, an ACDBE for purposes of
Part 23, or both.

 (c) As an airport or UCP, you must review the eligibility of currently
certified ACDBE firms to make sure that they meet the eligibility
standards of this part.

 (1) You must complete these reviews as soon as possible, but in no case
later than  [insert date one year from the effective date of rule] or
three years from the anniversary date of each firm’s most recent
certification, or  [insert date one year from the effective date of
rule], whichever is later.

(2) You must direct all currently certified ACDBEs to submit to you by
[insert date one year from effective date of rule] a personal net worth
statement, a certification of disadvantage, and an affidavit of no
change.

§23.23 33 What size standards do you recipients use to determine the
eligibility of ACDBEs?

	(a) As a recipient, you must, except as provided in paragraph (cb) of
this section, treat a firm as a small business eligible to be certified
as an ACDBE if its gross receipts, averaged over the firm’s previous
three fiscal years, do not exceed $40.5730 million.

	(b) In determining whether a firm meets the small business size
standards of paragraphs (a)  and (c)(2),  exclude monies paid by firms
to airports for the privilege of conducting business at the airport
(e.g., concession or lease fees).

	(cb) Apply the size standards in this paragraph (c) to the following
types of businesses:The following types of businesses have size
standards that differ from the standard set forth in paragraph (a) of
this section:

	(1) Banks and financial institutions:  $275 million in assets;

	(2) Car rental companies: $54.140 million average annual gross receipts
over the firm’s three previous fiscal years;

	(3) Pay telephones:  1,500 employees.

§23.25  35  What is the personal net worth standard for disadvantaged
owners of ACDBEs?

	 The personal net worth standard used in determining eligibility for
purposes of this part is $870750,000.  Any individual who has a personal
net worth exceeding this amount is not a socially and economically
disadvantaged individual for purposes of this part, even if the
individual is a member of a group otherwise presumed to be
disadvantaged.

§23.27  37  Are firms certified under 49 CFR Part 26 eligible to
participate as ACDBEs?

(a) You must presume that a firm that is certified as a DBE under Part
26 is eligible to participate as an ACDBE.  By meeting the size,
disadvantage (including personal net worth), ownership and control
standards of Part 26, the firm will have also met the eligibility
standards for Part 23.

(b) However, before certifying such a firm, you must ensure that the
disadvantaged owners of a DBE certified under Part 26 are able to
control the firm with respect to its activity in the concessions
program.  In addition, you are not required to certify a Part 26 DBE as
a Part 23 ACDBE if the firm does not do work relevant to the airport’s
concessions program.

§ 23. 29  39  What other certification requirements apply in the case
of ACDBEs?

(a) The provisions of part 26Part 26, §§26.83 (c)(2) through (c)(6) do
not apply to certifications for purposes of this part.  Instead, in
determining whether a firm is an eligible ACDBE, you must take the
following steps:

	(1)  Obtain the resumes or work histories of the principal owners of
the firm and personally interview these individuals;

	(2)  Analyze the ownership of stock of the firm, if it is a
corporation;

	(3)  Analyze the bonding and financial capacity of the firm;

	(4)  Determine the work history of the firm, including any concession
contracts or other contracts it may have received;

	(5)  Obtain or compile a list of the licenses of the firm and its key
personnel to perform the concession contracts or other contracts it
wishes to receive;

	(6)  Obtain a statement from the firm of the type(s) of concession(s)
it prefers to operate or the type(s) of other contract(s) it prefers to
perform.

	(b) In reviewing the affidavit required by Part 26, §26.83(j), you
must ensure that the ACDBE firm meets the applicable size standard in
§23.2333.

	(c) For purposes of this part, the term "prime contractor" in Part 26,
§26.87(i) includes a firm holding a prime contract with an airport
concessionaire to provide goods or services to the concessionaire or a
firm holding a prime concession agreement with a recipient.

	(d) With respect to firms owned by Alaska Native Corporations (ANCs),
the provisions of Part 26, §26.73(i) do not apply under this part.  The
eligibility of ANC-owned firms for purposes of this part is governed by
§26.73(h).

(e) The procedures of Part 26, § 26.87(i)(2) apply to this part, except
whenWhen you remove a concessionaire's eligibility after the
concessionaire has entered a concession agreement, because the firm
exceeded the small business size standard or because an owner has
exceeded the personal net worth standard, and the firm in all other
respects remains an eligible DBE, you may continue to count the
concessionaire’s participation toward DBE goals during the remainder
of the current concession agreement.  However, you must not count the
concessionaire’s participation toward DBE goals beyond the termination
date for the concession agreement in effect at the time of the
decertification (e.g., in a case where the agreement is renewed or
extended, or an option for continued participation beyond the current
term of the agreement is exercised).after entering a concession
agreement.  In such instances, the procedures set forth under the
definition of a "small business concern" in  §23.3 shall apply.

(f) When UCPs are established in a state (see Part 26, §26.81), the
UCP, rather than individual recipients, certifies firms for the ACDBE
concession program.

(g) You must use the Uniform Application Form found in Appendix F to
Part 26.  However, you must instruct applicants to take the following
additional steps:

(1) In the space available in Section 2(B)(7) of the form, the applicant
must state that it is applying for certification as an ACDBE.

(2) With respect to Section 4 (C) of the form, the applicant must
provide information on an attached page concerning the address/location,
ownership/lease status, current value of property or lease, and
fees/lease payments paid to the airport.

(3) The applicant need not complete Section 4(I) and (J).  However, the
applicant must provide information on an attached page concerning any
other airport concession businesses the applicant firm or any affiliate
owns and/or operates, including name, location, type of concession, and
start date of concession.

(h) Car rental companies and private terminal owners or lessees are not
authorized to certify firms as ACDBEs.  As a car rental company or
private terminal owner or lessee, you must obtain ACDBE participation
from firms which a recipient or UCPs have certified as ACDBEs.

(i) You must use the certification standards of this part to determine
the ACDBE eligibility of firms that provide goods and services to
concessionaires.

Subpart D - Goals, Good Faith Efforts, and Counting

§23.31  41  What is the basic overall goal requirement for recipients?

	(a) If you are a recipient who must implement an ACDBE program, you
must, except as provided in paragraph (b) of this section,  establish
two separate percentage overall ACDBE goals.  The first is for
concessions except car rentals; the second is for concessions other than
 car rentals.

(b) If your annual car rental concession revenues, averaged over the
three-years preceding the date on which you are required to submit
overall goals, do not exceed $200,000, you are not required to submit a
car rental overall goal.  If your annual revenues for concessions other
than car rentals, averaged over the three years preceding the date on
which you are required to submit overall goals, do not exceed $200,000,
you are not required to submit a non-car rental overall goal.

 (c) Each overall goal must cover a three-year period.  You must review
your goals annually to make sure they continue to fit your circumstances
appropriately.   You must report to the FAA any significant adjustments
that you make to your goal in the time before your next scheduled
submission.

 (d) Your goals established under this part must provide for
participation by all certified ACDBEs and may not be subdivided into
group-specific goals.

(e) If you fail to establish and implement goals as provided in this
section, you are not in compliance with this part.  If you establish and
implement goals in a way different from that provided in this part, you
are not in compliance with this part.  If you fail to comply with this
requirement, you are not eligible to receive FAA financial assistance.

§23.33  43  What are the public participationconsultation  requirements
in the development of recipients’ overall goals?

	(a)  As a recipient, you must provide for public participation by
taking at least the steps listed in paragraphs (b) of this section
consult with stakeholders before submitting your overall goals to FAA.

 (i.e., every three years when you submit  new overall goals for
ACDBEs).

	(b) Before proposing new goals,Stakeholders with whom you must consult
with include, but are not limited to, minority and women's business
groups, community  organizations, trade associations representing
concessionaires currently located at the airport, as well as existing
concessionaires themselves, and other officials or organizations which
could be expected to have information concerning the availability of
disadvantaged businesses, the effects of discrimination on opportunities
for ACDBEs, and the recipient’s efforts to increase participation of
ACDBEs.

§23.35  45  What are the requirements for submitting overall goal
information to the FAA?

	(a) You must submit your overall goals to the appropriate FAA Regional
Civil Rights Office for approval.  Your first set of overall goals
meeting the requirements of this subpart are due on the following
schedule:

	(1) If you are a large or medium hub primary airport on [insert
effective date of this rule], by October January 1, 2006.1, 2004  You
must make your next submissions by October 1, 2008..

	(2) If you are a small hub primary airport, on [insert effective date
of this rule], by October 1, 20052006.

	(3) If you are a nonhub primary airport on [insert effective date of
this rule], by October 1, 20062007.

	(b)  You must then submit new goals every three years after the date
that applies to you.

	(c) Timely submission and FAA approval of your overall goals is a
condition of eligibility for FAA financial assistance.

(d) In the time before you make your first submission under paragraph
(a) of this section, you must continue to use the overall goals that
have been approved by the FAA before the effective date of this part.

	(e) Your overall goal submission must include a description of the
method used to calculate your goals and the data you relied on.  You
must “show your work” to enable the FAA to understand how you
concluded your goals were appropriate.   This means that you must
provide to the FAA the data, calculations, assumptions, and reasoning
used in establishing your goals.

(f) Your submission must include your projection of the portions of your
overall goals you propose to meet through use of race-neutral and
race-conscious means, respectively, and the basis for making this
projection (see §23.4151(fd)(5))

(g)  FAA may approve or disapprove the way you calculated your goal,
including your race-neutral/race-conscious “split,” as part of its
review of your plan or goal submission.   Except as provided in
paragraph (h) of this section, the FAA does not approve or disapprove
the goal itself (i.e., the number).

(h) If the FAA determines that your goals have not been correctly
calculated or the justification is inadequate, the FAA may, after
consulting with you, adjust your overall goal or
race-conscious/race-neutral “split.”  The adjusted goal represents
the FAA’s determination of an appropriate overall goal for ACDBE
participation in the recipient’s concession program, based on relevant
data and analysis.  The adjusted goal is binding on you.

(i)  If a new concession opportunity the estimated average annual  gross
revenues of which are anticipated to be $200,000 or greater arises
Whenever there are new concessions opportunities at the airport – even
at at a time that falls between normal submission dates for overall
goals goals, you must submit --  you must submit an appropriate
adjustment to your overall goal to the FAA for approval for the
available opportunity at least six months in advance of ratifying any
new concessions agreement unless the FAA Administrator establishes a
different submission date.   before executing the concession agreement
for the new concession  opportunity.

§23.37 47 What is the base for a recipient’s goal for concessions
other than car rentals?

	(a) As a recipient, the base for your goal includes the total gross
receipts of concessions, except as otherwise provided in this section.

	(b) This base does not include the gross receipts of car rental
operations.

	(c) The dollar amount of a management contract or subcontract with a
non-ACDBE and the gross receipts of business activities to which a
management or subcontract with a non-ACDBE pertains are not added to
this base.

	(d) This base does not include any portion of a firm's estimated gross
receipts that will not be generated from a concession.

EXAMPLE TO PARAGRAPH (d):  A firm operates a restaurant in the airport
terminal which serves the traveling public and, under the same lease
agreement, provides in-flight catering service to air carriers.  The
projected gross receipts from the restaurant are included in the overall
goal calculation, while the gross receipts to be earned by the in-flight
catering services are not.

§23.39   49   What is the base for a recipient’s goal for car
rentals?

Except in the case where you use the alternative goal approach of
section 23.51(c)(5)(ii) of this part, The the  base for your goal is the
total gross receipts of car rental operations at your airport.  You do
not include gross receipts of other concessions in this base.

§23.41  51  How are a recipient’s overall goals expressed and
calculated?

(a) Your objective in setting a goal is to estimate the percentage of
the base calculated under §§23.37 47 – 23.39 49 that would be
performed by ACDBEs in the absence of discrimination and its effects.

(1) This percentage is the estimated ACDBE participation that would
occur if there were a “level playing field” for firms to work as
concessionaires for your airport.

(2) In conducting this goal setting process, you are determining the
extent, if any, to which the firms in your market area have suffered
discrimination or its effects in connection with concession
opportunities or related business opportunities.

(3) You must complete the goal-setting process separately for each of
the two overall goals identified in §23.31 41 of this part.

(b) (1) Each overall concessions goal must be based on demonstrable
evidence of the availability of ready, willing and able ACDBEs relative
to all businesses ready, willing and able to participate in your ACDBE
program (hereafter, the "relative availability of ACDBEs").

(2) You cannot simply rely on the 10 percent national aspirational goal,
your previous overall goal, or past ACDBE participation rates in your
program without reference to the relative availability of ACDBEs in your
market.

(3) Your market area is defined by the geographical area in which the
substantial majority of firms which seek to do concessions business with
the airport are located and the geographical area in which the firms
which receive the substantial majority of concessions-related revenues
are located.  Your market area may be different for different types of
concessions.

(c) Step 1. You must begin your goal setting process by determining a
base figure for the relative availability of ACDBEs. The following are
examples of approaches that you may take toward determining a base
figure. These examples are provided as a starting point for your goal
setting process. Any percentage figure derived from one of these
examples should be considered a basis from which you begin when
examining the evidence available to you.  These examples are not
intended as an exhaustive list. Other methods or combinations of methods
to determine a base figure may be used, subject to approval by the FAA.

(1) Use DBE Directories and Census Bureau Data. Determine the number of
ready, willing and able ACDBEs in your market area from your ACDBE
directory. Using the Census Bureau's County Business Pattern (CBP) data
base, determine the number of all ready, willing and able businesses
available in your market area that perform work in the same NAICS codes.
(Information about the CBP data base may be obtained from the Census
Bureau at their web site,   HYPERLINK
"http://www.census.gov/epcd/cbp/view/cbpview.html"
www.census.gov/epcd/cbp/view/cbpview.html .) Divide the number of ACDBEs
by the number of all businesses to derive a base figure for the relative
availability of ACDBEs in your market area.

(2) Use an Active Participants List. Determine the number of ACDBEs that
have participated or attempted to participate in your airport
concessions program in previous years. Determine the number of all
businesses that have participated or attempted to participate in your
airport concession program in previous years. Divide the number of
ACDBEs who have participated or attempted to particpate by the number
for all businesses to derive a base figure for the relative availability
of ACDBEs in your market area.

(3) Use data from a disparity study. Use a percentage figure derived
from data in a valid, applicable disparity study.

(4) Use the goal of another recipient. If another airport or other DOT
recipient in the same, or substantially similar, market has set an
overall goal in compliance with this rule, you may use that goal as a
base figure for your goal.

(5) Alternative methods. (i)You may use other methods to determine a
base figure for your overall goal. Any methodology you choose must be
based on demonstrable evidence of local market conditions and be
designed to ultimately attain a goal that is rationally related to the
relative availability of ACDBEs in your market area.

	(ii) In the case of a car rental goal, where it appears that all or
most of the goal is likely to be met through the purchases by car rental
companies of vehicles or other goods or services from ACDBEs, one
permissible alternative is to structure the goal entirely in terms of
purchases of goods and services.  In this case, you would calculate your
car rental overall goal by dividing the estimated dollar value of such
purchases from ACDBEs by the total estimated dollar value of all
purchases to be made by car rental companies

(d) Step 2. Once you have calculated a base figure, you must examine all
 relevant evidence reasonably available in your jurisdiction to
determine what adjustment, if any, is needed to the base figure in order
to arrive at your overall goal.

(1) There are many types of evidence that must be considered when
adjusting the base figure. These include, but are not limited to:   (i)
The current capacity of ACDBEs to perform work in your concessions
program, as measured by the volume of work ACDBEs have performed in
recent years;  and (ii) Evidence from disparity studies conducted
anywhere within your jurisdiction, to the extent it is not already
accounted for in your base figure.

 (2) If your base figure is the goal of another recipient, you must
adjust it for differences in your local market area and your concessions
program.

(3) If available, you must consider evidence from related fields that
affect the opportunities for ACDBEs to form, grow and compete. These
include, but are not limited to:   (i) Statistical disparities in the
ability of ACDBEs to get the financing, bonding and insurance required
to participate in your program;   (ii) Data on employment,
self-employment, education, training and union apprenticeship programs,
to the extent you can relate it to the opportunities for ACDBEs to
perform in your program.

(4) If you attempt to make an adjustment to your base figure to account
for the continuing effects of past discrimination, or the effects of an
ongoing ACDBE program, the adjustment must be based on demonstrable
evidence that is logically and directly related to the effect for which
the adjustment is sought.

	(5) You must include with your overall goal submission aAmong the
information you submit with your overall goal (see  23.45(e)), you must
include description of the methodology you used to establish the goal,
including your base figure and the evidence with which it was
calculated, and as well as the adjustments you made to the base figure
and the evidence relied on for the adjustments. You should also include
a summary listing of the relevant available evidence in your
jurisdiction and an explanation of how you used that evidence to adjust
your base figure. You must also include your projection of the portions
of the overall goal you expect to meet through race-neutral and
race-conscious measures, respectively (see §§ 26.51(c)).

(e) You are not required to obtain prior FAA concurrence with your
overall goal (i.e., with the number itself). However, if the FAA’s
review suggests that your overall goal has not been correctly
calculated, or that your method for calculating goals is inadequate, the
FAA may, after consulting with you, adjust your overall goal or require
that you do so. The adjusted overall goal is binding on you.

(f) If you need additional time to collect data or take other steps to
develop an approach to setting overall goals, you may request the
approval of the FAA Administrator for an interim goal and/or
goal-setting mechanism. Such a mechanism must:

(1) Reflect the relative availability of ACDBEs in your local market
area to the maximum extent feasible given the data available to you; and

 (2) Avoid imposing undue burdens on non-ACDBEs.

§23.43  53  How do car rental companies count ACDBE participation
toward their goals?

	(a) As a car rental company, you may, in meeting the goal the airport
has set for you, include purchases or leases of vehicles from any vendor
that is a certified ACDBE.

(b) As a car rental company, if you choose to meet the goal the airport
has set for you by including purchases or leases of vehicles from an
ACDBE vendor, , you must also submit to the recipient documentation of
the good faith efforts you have made to obtain ACDBE participation from
other ACDBE providers of goods and services.

	(c) While this part does not require you to obtain ACDBE participation
through direct ownership arrangements, you may count such participation
toward the goal the airport has set for you.

(d) The following special rules apply to counting participation related
to car rental operations:

	(1)  Count the entire amount of the cost charged by an ACDBE for
repairing vehicles, provided that it is reasonable and not excessive as
compared with fees customarily allowed for similar services.

	(2)  Count the entire amount of the fee or commission charged by a
ACDBE to manage a car rental concession under an agreement with the
concessionaire toward ACDBE goals, provided that it is reasonable and
not excessive as compared with fees customarily allowed for similar
services.

 (3) Do not count any portion of a fee paid by a manufacturer to a car
dealership for reimbursement of work performed under the manufacturer's
warranty.

	(e) For other goods and services, count participation toward ACDBE
goals as provided in Part 26, §26.55 and §23.45 55 of this part.  In
the event of any conflict between these two sections, §23.45 55
controls.

	(f) If you have a national or regional contract, count a pro-rated
share of the amount of that contract toward the goals of each airport
covered by the contract.  Use the proportion of your applicable gross
receipts as the basis for making this pro-rated assignment of ACDBE
participation.

	EXAMPLE TO PARAGRAPH (ef): Car Rental Company X signs a regional
contract with an ACDBE car dealer to supply cars to all five airports in
a state.   The five airports each account for 20 percent of X's gross
receipts in the state.  Twenty percent of the value of the cars
purchased through the ACDBE car dealer would count toward the goal of
each airport.

(g) If an ACDBE firm certified on [insert effective date of this part]
is decertified because one or more of its disadvantaged owners do not
meet the personal net worth criterion of this part, the firm’s
participation may continue to be counted toward ACDBE goals for the
remainder of contracts or other agreements in effect on that date (but
not extensions or renewals of such contracts or agreements).

§23.45  55  How do recipients count ACDBE participation toward goals
for items other than car rentals?

	(a) You count only ACDBE participation that results from a commercially
useful function. For purposes of this part, the term commercially useful
function has the same meaning as in Part 26, § 26.55(c), except that
the requirements of

§ 26.55(c)(3) do not apply to concessions.

	(b)  Count the total dollar value of gross receipts an ACDBE earns
under a concession agreement and the total dollar value of a management
contract or subcontract with an ACDBE toward the goal.  However, if the
ACDBE enters into a subconcession agreement or subcontract with a
non-ACDBE, do not count any of the gross receipts earned by the
non-ACDBE.

	(c)  When an ACDBE performs as a subconcessionaire or subcontractor for
a non-ACDBE, count only the portion of the gross receipts earned by the
ACDBE under its subagreement.

	(d)  When a concession is performed by a joint venture involving a
ACDBE and a non-ACDBE, When an ACDBE performs as a participant in a
joint venture, count a portion of the gross receipts equal to the
distinct, clearly defined portion of the work of theconcession that the
ACDBE performs with its own forces toward ACDBE goals.

count a portion of the gross receipts equal to the percentage of the
ownership and control by the ACDBE partner in the joint venture.  To
perform a commercially useful function as part of a joint venture, the
ACDBE must be independently responsible for a separate, identifiable
portion of the work of the joint venture.

	(e)  Count the entire amount of fees or commissions charged by an ACDBE
firm for a bona fide service, provided that, as the recipient, you
determine this amount to be reasonable and not excessive as compared
with fees customarily allowed for similar services.  Such services may
include, but are not limited to, professional, technical, consultant,
legal, security systems, advertising, building cleaning and maintenance,
computer programming, or managerial.

 	(f)  Count 100 percent of the cost of goods obtained from an ACDBE
manufacturer.  For purposes of this part, the term manufacturer has the
same meaning as in Part 26, §26.55(e)(1)(ii).

(g) Count 100 percent of the cost of goods purchased or leased from a
ACDBE regular dealer.  For purposes of this part, the term “regular
dealer” has the same meaning as in Part 26, §26.55(e)(2)(ii).

	(h) Count credit toward ACDBE goals for goods purchased from an ACDBE
which is neither a manufacturer nor a regular dealer as follows:

	(1)  Count the entire amount of fees or commissions charged for
assistance in the procurement of the goods, provided that this amount is
reasonable and not excessive as compared with fees customarily allowed
for similar services.  Do not count any portion of the cost of the goods
themselves.

	(2)  Count the entire amount of fees or transportation charges for the
delivery of goods required for a concession, provided that this amount
is reasonable and not excessive as compared with fees customarily
allowed for similar services.  Do not count any portion of the cost of
goods themselves.

	(i) If a firm has not been certified as an ACDBE in accordance with the
standards in this Part, do not count the firm's participation toward
ACDBE goals.

 (j)(1)  Except in the case of a concession that exceeds the small
business size standard during the term of a contract, as referenced
under the definition of a "small business concern,"  do Do not count the
work performed or gross receipts earned by a firm after its eligibility
has been removed toward ACDBE goals.  However, if an ACDBE firm
certified on [insert effective date of this part] is decertified because
one or more of its disadvantaged owners do not meet the personal net
worth criterion or the firm exceeds business size standards of this part
during the performance of a contract or other agreement, the firm’s
participation may continue to be counted toward ACDBE goals for the
remainder of the term of  the contract or other agreement (but not
extensions or renewals of such contracts or agreements).

(2) If an ACDBE firm certified on [insert effective date of this part]
is decertified because one or more of its disadvantaged owners do not
meet the personal net worth criterion of this part, the firm’s
participation may continue to be counted toward ACDBE goals for the
remainder of contracts or other agreements in effect on that date (but
not extensions or renewals of such contracts or agreements).

	(k)  Do not count costs incurred in connection with the renovation,
repair, or construction of a concession facility (sometimes referred to
as the "build-out).

 (l) Do not count the ACDBE participation of car rental companies toward
your ACDBE achievements toward this goal, since it is for items other
than car rentals..

§23.47   57   What happens if a recipient falls short of meeting its
overall goals?

	(a) You cannot be penalized, or treated by the Department as being in
noncompliance with this part, simply because your ACDBE participation
falls short of your overall goals.  You can be penalized or treated as
being in noncompliance only if you have failed to administer your ACDBE
program in good faith.

	(b) If your ACDBE participation falls short of your overall goals, FAA
may require you to submit to the FAA a statement of the reasons why you
were unable to meet it and the steps you are taking to meet your overall
goals or to adjust them based on changed circumstances.

	(c)  In response to your submission, FAA may require you to implement
appropriate remedial measures,

§23.49  59  What is the role of the statutory 10 percent goal in the
ACDBE program?

	(a) The statute authorizing the ACDBE program provides that, except to
the extent the Secretary determines otherwise, not less than 10 percent
of concession businesses are to be ACDBEs.

	(b) This 10 percent goal is an aspirational goal at the national level,
which the Department uses as a tool in evaluating and monitoring DBEs’
opportunities to participate in airport concessions.

	(c) The national 10 percent aspirational goal does not authorize or
require recipients to set overall or concession-specific goals at the 10
percent level, or any other particular level, or to take any special
administrative steps if their goals are above or below 10 percent.

§23.51  61  Can recipients use quotas or set-asides as part of their
ACDBE programs?

	 You are not permitted tomust not use quotas or set-asides for ACDBE
participation in your program.

	.

Subpart E -  Other Provisions

§ 23.61  71  Does a recipient have to change existing concession
agreements?

	No.   Nothing in this part requires you to modify or abrogate an
existing concession agreement (one executed before [insert effective
date of this part]) during its term.  When an extension or option to
renew such an agreement is exercised, or when a material amendment is
made, you must assess potential for ACDBE participation and may, if
permitted by the agreement, use any means authorized by this part to
obtain a modified amount of ACDBE participation in the renewed or
amended agreement.

§23.63  73  What requirements apply to privately-owned or leased
terminal buildings?

	(a) If you are a recipient who is required to implement an ACDBE
program on whose airport there is a privately-owned or leased terminal
building that has concessions, or any portion of such a building,  this
section applies to you.

	(b) You must pass through the applicable requirements of this part to
the private terminal owner or lessee via your agreement with the owner
or lessee or by other means.  You must ensure that the terminal owner or
lessee complies with the requirements of this part.

	(c) If your airport is a primary airport, you must obtain from the
terminal owner or  lessee the goals and other elements of the ACDBE
program required under this part.  You must incorporate this information
into your concession plan and submit it to the FAA in accordance with
this part.

	(d) If the terminal building is at a non-primary commercial service
airport or general aviation airport or reliever airport, the you must
ensure that the owner complies with the requirements in § 23. 1.21(e)

§ 23.65  75  Can recipients enter into long-term, exclusive agreements
with concessionaires?

	(a) Except as provided in paragraph (b) of this section, you must not
enter into long-term, exclusive agreements for concessions.  For
purposes of this section, a long-term agreement is one having a term
longer than five years.  	(b) You may enter into a long-term, exclusive
concession agreement only under the following conditions:

	(1) Special local circumstances exist that make it important to enter
such agreement, and

	(2) The responsible FAA regional office approves your plan for meeting
the standards of paragraph (c) of this section.

	(c) In order to obtain FAA approval of a long-term-exclusive concession
agreement, you must submit the following information to the FAA regional
office:

	(1) A description of the special local circumstances that warrant a
long-term, exclusive agreement.

	(2) A copy of the draft and final leasing and subleasing or other
agreements.  This long-term, exclusive agreement must provide that:

	(i)  A number of ACDBEs that reasonably reflects their availability in
your market area, in the absence of discrimination, to do the types of
work required will participate as concessionaires throughout the term of
the agreement and account for at a percentage of the estimated annual
gross receipts equivalent to a level set in accordance with §§23.37 47
– 23.39  49  of this part.

	(ii)  You will review the extent of ACDBE participation before the
exercise of each renewal option to consider whether an increase or
decrease in ACDBE participation is warranted.

	(iii)  An ACDBE concessionaire that is unable to perform successfully
will be replaced by another ACDBE concessionaire, if the remaining term
of the agreement makes this feasible.  In the event that such action is
not feasible, you will require the concessionaire to make good faith
efforts during the remaining term of the agreement to encourage ACDBEs
to compete for the purchases and/or leases of goods and services to be
made by the concessionaire.

	(3)  Assurances that any ACDBE participant will be in an acceptable
form, such as a sublease, joint venture, or partnership.

  (4)  Documentation that ACDBE participants are properly certified.

  (5)  A description of the type of business or businesses to be
operated (e.g.,  location, storage and delivery space,
"back-of-the-house facilities" such as kitchens, window display space,
advertising space, and other amenities that will increase the ACDBE's
chance to succeed).

	(6)  Information on the investment required on the part of the ACDBE
and any unusual management or financial arrangements between the prime
concessionaire and ACDBE.

 Information on the estimated gross receipts and net profit to be earned
by the ACDBE.

§ 23.69  77  Does this part preempt local requirements?

	Nothing in this part preempts any State or local law, regulation, or
policy enacted by the governing body of a recipient, or limits the
authority of any State or local government or recipient to adopt or
enforce any law, regulation, or policy relating to ACDBEs, as long as
the law, regulation, or policy does not conflict with this part.  (a) In
the event that a State or local law, regulation, or policy conflicts
withdiffers from the requirements of this part, the recipient must, as a
condition of remaining eligible to receive Federal financial assistance
from the DOT, take such steps as may be necessary to comply with the
requirements of this part.

(b) You must clearly identify any State or local law, regulation, or
policy pertaining to minority, women’s, or disadvantaged business
enterprise concerning airport concessions that adds to, goes beyond, or
imposes more stringent requirements than the provisions of this part.
FAA will determine whether such a law, regulation, or policy conflicts
with this part, in which case the requirements of this part will govern.

(c) If not deemed in conflict by the FAA, you must write and administer
such a state or local law, policy, or regulation separately from the
ACDBE program.

(d) You must provide copies of any such provisions and the legal
authority supporting them to the FAA with your ACDBE program submission.
 FAA will not approve an ACDBE program if there are such provisions that
conflict with the provisions of this Part.

(e) However, nothing in this part preempts any state or local law,
regulation, or policy enacted by the governing body of a recipient, or
the authority of any State or local government or recipient to adopt or
enforce any law, regulation, or policy relating to ACDBEs, as long as
the law, regulation, or policy does not conflict with this part.

§23.71   79   Does this part permit recipients to use local geographic
preferences?

	No.   As a recipient you must not use a local geographic preference.
For purposes of this section, a local geographic preference is any
requirement that gives a ACDBE located in one place (e.g., your local
area) an advantage over ACDBEs from other places in obtaining business
as, or with, a concession at your airport.

§23.73  What compliance and enforcement provisions are used under this
part?

	The compliance and enforcement provisions of Part 26 (§§26.101 and
26.105 – 26.107) apply to this part in the same way that they apply to
FAA recipients and programs under Part 26.

Appendix A to Part 23 – UNIFORM REPORT OF ACDBE PARTICIPATION

Uniform Reporting Form for Participation by Airport Concessionaire
Disadvantaged Business Enterprises

INSTRUCTIONS FOR UNIFORM REPORT OF ACDBE PARTICIPATION

Insert name of airport receiving FAA financial assistance and AIP
number..

  2.  Provide the name and contact information (phone, fax, e-mail) for
the person FAA should contact with questions about the report

       3a.  Provide the annual reporting period to which the report
pertains

	(e.g., October 2005 – September 2006).

       3b.  Provide the date on which the report is submitted to FAA.

 4.  This block and blocks 5 and 6 concern non-car rental goals and
participation only.  In this block, provide the overall non-car rental
percentage goal and the race-conscious (RC) and race-neutral (RN)
components of it.  The RC and RN percentages should add up to the
overall percentage goal.

5.   For purposes of this block and blocks 6, 8, and 9, the
participation categories listed at the left of the block are the
following:  “Prime Concessions” are concessions who have a direct
relationship with the airport (e.g., a company who has a lease agreement
directly with the airport to operate a concession).  A
“subconcession” is a firm that has a sublease or other agreement
with a prime concessionaire, rather than with the airport itself, to
operate a concession at the airport.   A “management contract” is an
agreement between the airport and a firm to manage a portion of the
airport’s facilities or operations (e.g., manage the parking
facilities).  “Goods/services” refers to those goods and services
purchased by the airport itself or by concessionaires and management
contractors from certified DBEs.

Block 5 concerns all non-car rental concession activity covered by 49
CFR Part 23 during the reporting period, both new or continuing.

In Column A, enter the total concession gross revenues for
concessionaires (prime and sub) and purchases of goods and services
(ACDBE and non-ACDBE combined) at the airport.  In Column B, enter the
number of lease agreements, contracts, etc. in effect or taking place
during the reporting period in each participation category for all
concessionaires and purchases of goods and services (ACDBE and non-ACDBE
combined).

Because, by statute, non-ACDBE management contracts do not count as part
of the base for ACDBE goals, the cells for total management contract
participation and ACDBE participation as a percentage of total
management contracting dollars are not intended to be filled in blocks
5, 6, 8, and 9.

In Column C, enter the total gross revenues in each participation
category (ACDBEs) only.  In Column D, enter the number of lease
agreements, contracts, etc., in effect or entered into during the
reporting period in each participation category for all concessionaires
and purchases of goods and services (ACDBEs only).

Columns E and F are subsets of Column C:  break out the total gross
revenues listed in Column C into the portions that are attributable to
race-conscious and race-neutral measures, respectively.  Column G is a
percentage calculation.  It answers the question, what percentage of the
numbers in Column A is represented by the corresponding numbers in
Column C?

6.  The numbers in this blockBlock concern only new non-car rental
concession opportunities that arose during the current reporting period.
In other words, the information requested in Block 6 is a subset of that
requested in Block 5.  Otherwise, this blockBlock is filled out in the
same way as Block 5.

7.  Blocks 7-9 concern car rental goals and participation. In Block 7,
provide the overall car rental percentage goal and the race-conscious
(RC) and race-neutral (RN) components of it.  The RC and RN percentages
should add up to the overall percentage goal.

8.  Block 8 is parallel to blockBlock 5, except that it is for car
rentals.  The instructions for filling it out are the same as for
blockBlock 5.

9.  Block 9 is parallel to blockBlock 6, except that it is for car
rentals. The information requested in Block 9 is a subset of that
requested in Block 8.  The instructions for filling it out are the same
as for blockBlock 6.

10.  Block 10 instructs recipients to bring forward the cumulative ACDBE
participation figures from Blocks 5 and 8, breaking down these figures
by race and gender categories.  Participation by non-minority
women-owned firms should be listed in the “non-minority women”
column.  Participation by firms owned by minority women should be listed
in the appropriate minority group column.  The “other” column should
be used to reflect participation by individuals who are not a member of
a presumptively disadvantaged group who have been found disadvantaged on
a case-by-case basis.

11.  This block instructs recipients to attach five information items
for each ACDBE firm participating in its program during the reporting
period.

If the firm’s participation numbers are reflected in Blocks 5 – 6
and/or 8-9,  the requested information about that firm should be
attached in response to this item.

UNIFORM REPORT OF ACDBE PARTICIPATION

1. Name of Recipient and AIP Number:

2.  Contact Information:

3a.  Reporting Period:  						3b. Date of Report:

4. Current Non-Car Rental ACDBE Goal:  Race Conscious Goal ____ %  Race
Neutral Goal _____ %

     Overall Goal _____ %

5.  Non-Car Rental	A	B	C	D	E	F	G

CUMULATIVE ACDBE PARTICIPATION	Total Dollars

(everyone)	Total Number

(everyone)	Total to ACDBEs

(dollars)	Total to ACDBEs

(number)	RC  to

ACDBEs

(dollars)	RN to ACDBEs

(dollars)	% of dollars to ACDBEs

Prime Concessions

	Subconcessions

	Management Contracts	XXXXXXX	XXXXXXX

	XXXXXX

Goods/Services

	Totals

6. Non-Car Rental	A	B	C	D	E	F	G

NEW ACDBE PARTICIPATION

THIS PERIOD	Total Dollars

(everyone)	Total Number

(everyone)	Total to ACDBEs

(dollars)	Total to ACDBEs

(number)	RC  to

ACDBEs

(dollars)	RN to ACDBEs

(dollars)	% of dollars to ACDBEs

Prime Concessions

	Subconcessions

	Management Contracts	XXXXXXX	XXXXXXX

	XXXXXX

Goods/Services

	Totals

7. Current Car Rental ACDBE Goal:  Race Conscious Goal ____ %  Race
Neutral Goal _____ %

      Overall Goal _____ %

8.  Car Rental	A	B	C	D	E	F	G

CUMULATIVE ACDBE PARTICIPATION	Total Dollars

(everyone)	Total Number

(everyone)	Total to ACDBEs

(dollars)	Total to ACDBEs

(number)	RC  to

ACDBEs

(dollars)	RN to ACDBEs

(dollars)	% of dollars to ACDBEs

Prime Concessions

	Subconcessions

	Goods/Services

	Totals

9. Car Rental	A	B	C	D	E	F	G

NEW ACDBE PARTICIPATION

THIS PERIOD	Total Dollars

(everyone)	Total Number

(everyone)	Total to ACDBEs

(dollars)	Total to ACDBEs

(number)	RC  to

ACDBEs

(dollars)	RN to ACDBEs

(dollars)	% of dollars to ACDBEs

Prime Concessions

	Subconcessions

	Goods/Services

	Totals

10. CUMULATIVE ACDBE PARTICIPATION BY RACE/GENDER	A	B	C	D	E	F	G	H

	Black Americans	Hispanic Americans)	Asian-Pacific Americans
Asian-Indian Americans	Native Americans	Non-minority Women

	Other	Totals

Car Rental

Non-Car Rental

Totals

11. On an attachment, list the following information for each ACDBE firm
participating in your program during the period of this report:  (1)
Firm name;  (2) Type of business; (3) Beginning and expiration dates of
agreement, including options to renew; (4) Dates that material
amendments have been or will be made to agreement (if known); (5)
Estimated gross receipts for the firm during this reporting period.

 PAGE

 PAGE   47


	Cost estimates for Coal Preparation and Processing Plants NSPS Amendments

	Mary Johnson

	to:

	Higgins, Cortney

	09/10/2009 11:11 AM

	Cc:

	RobertJ Wayland, Bill Maxwell, Brian Shrager, Thomas Gillis, rodman.sonja

	Show Details

Cortney,

Per your request, attached is a file containing the following information

regarding potential impacts on coal handling equipment:

Model plant description

Model plant cost summary

Model plant impacts summary

Nationwide cost summary

Nationwide impact summary

The costs are based on very conservative assumptions that:  (1) PM

emissions from all coal handling equipment will be controlled through use

of enclosures vented to fabric filters; (2) all owner/operators will

choose to use repeat annual Method 9 opacity testing to monitor coal

handling equipment subject to an opacity limit; and (3) annual Method 5

performance testing for PM emissions from fabric filters will be

conducted.  Many owners/operators are likely to elect to use less

expensive controls.

Let me know if you have any questions.

Thanks.

Mary Johnson

Environmental Engineer

U.S. Environmental Protection Agency

Office of Air Quality Planning and Standards

Mail Code D 243-01

Research Triangle Park, NC  27711

Phone:<PHONE_NUMBER>

Fax:<PHONE_NUMBER>


[Federal Register: June 30, 2008 (Volume 73, Number 126)]
[Notices]
[Page 36855-36856]
[DOCID:fr30jn08-57]

-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. ER08-1121-000]

Royal Bank of Canada; Supplemental Notice That Initial Market-
Based Rate Filing Includes Request for Blanket Section 204
Authorization

June 20, 2008.
    This is a supplemental notice in the above-referenced proceeding of
Royal Bank of Canada's application for market-based rate authority,
with an accompanying rate schedule, noting that such application
includes a request for blanket authorization, under 18 CFR part 34, of
future issuances of securities and assumptions of liability.
    Any person desiring to intervene or to protest should file with the
Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426, in accordance with Rules 211 and 214 of the
Commission's Rules of Practice and Procedure (18 CFR 385.211 and Sec.
385.214). Anyone filing a motion to intervene or protest must serve a
copy of that document on the Applicant.
    Notice is hereby given that the deadline for filing interventions
or protests with regard to the applicant's request for blanket
authorization, under 18 CFR Part 34, of future issuances of securities
and assumptions of liability, is July 10, 2008.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://
www.ferc.gov. To facilitate electronic service, persons with Internet
access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically should submit an original and
14 copies of the intervention or protest to the Federal Energy
Regulatory Commission, 888 First St., NE., Washington, DC 20426.
    The filings in the above-referenced proceeding are accessible in
the Commission's eLibrary system by clicking on the appropriate link in
the above list. They are also available for review in the Commission's
Public Reference Room in Washington, DC. There is an eSubscription link
on the Web site that enables subscribers to receive e-mail notification
when a document is added to a subscribed docket(s). For assistance with
any FERC

Online service, please e-mail<EMAIL_ADDRESS>or call (866)
208-3676 (toll free). For TTY, call<PHONE_NUMBER>.

 Kimberly D. Bose,
Secretary.
[FR Doc. E8-14689 Filed 6-27-08; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register: March 17, 2010 (Volume 75, Number 51)]
[Rules and Regulations]
[Page 12657-12659]
[DOCID:fr17mr10-1]

========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2010-0221; Directorate Identifier 2010-NM-043-AD;
Amendment 39-16233; AD 2010-06-09]
RIN 2120-AA64

Airworthiness Directives; The Boeing Company Model 777-200, -
200LR, -300, -300ER, and 777F Series Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; request for comments.

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SUMMARY: We are adopting a new airworthiness directive (AD) for certain
Model 777-200, -200LR, -300, -300ER, and 777F series airplanes. This AD
requires installing new operational program software for the autopilot
flight director computers. This AD results from reports of rejected
takeoffs at speeds above takeoff decision speed following inadvertent
autopilot engagement on the ground, and from the discovery during
flight simulations that the climb gradient is less than optimal for
obstacle clearance during a performance-limited takeoff situation. We
are issuing this AD to prevent inadvertent engagement of the autopilot
during takeoff roll, which could result in rejected takeoff at rotation
speed, and consequent possible overrun of the runway. We are also
issuing this AD to prevent a lower-than-optimal climb gradient during
takeoff, and consequent failure to clear obstacles on the ground during
a performance-limited takeoff.

DATES: This AD is effective April 1, 2010.
    The Director of the Federal Register approved the incorporation by
reference of a certain publication listed in the AD as of April 1,
2010.
    We must receive comments on this AD by May 3, 2010.

ADDRESSES: You may send comments by any of the following methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
    For service information identified in this AD, contact Boeing
Commercial Airplanes, Attention: Data & Services Management, P.O. Box
3707, MC 2H-65, Seattle, Washington 98124-2207; telephone<PHONE_NUMBER>,
extension 1; fax<PHONE_NUMBER>; e-mail<EMAIL_ADDRESS>Internet
https://www.myboeingfleet.com.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://
www.regulations.gov; or in person at the Docket Management Facility
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. The AD docket contains this AD, the regulatory evaluation,
any comments received, and other information. The street address for
the Docket Office (telephone<PHONE_NUMBER>) is in the ADDRESSES section.
Comments will be available in the AD docket shortly after receipt.

FOR FURTHER INFORMATION CONTACT: Frank van Leynseele, Aerospace
Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft
Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-
3356; telephone<PHONE_NUMBER>; fax<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Discussion

    We have received reports (including two in January 2010) of
rejected takeoffs at speeds above takeoff decision speed following
inadvertent engagement of the autopilot on the ground. Since 1995,
there have been nine reported instances of a rejected takeoff because
of higher than normal control column forces at takeoff rotation due to
the pilot inadvertently engaging the autopilot in lower-speed takeoff
roll. When the flightcrew inadvertently engages the autopilot on ground
during the lower-speed phase of the takeoff roll, the control column
forces will be higher than normal when the pilot attempts to initiate
the takeoff rotation. This condition, if not corrected, could result in
rejected takeoff at rotation speed, and consequent possible overrun of
the runway.
    The Boeing Company has also discovered during flight simulations
that the climb gradient is less than optimal for obstacle clearance
during a one-engine takeoff (performance-limited) situation. This is
caused by an error in the pitch command law of the autopilot flight
director computer (AFDC). This condition, if not corrected, could
result in a lower-than-optimal climb gradient during takeoff, and
consequent failure to clear obstacles on the ground during a
performance-limited takeoff.

Relevant Service Information

    We reviewed Boeing Alert Service Bulletin 777-22A0024, dated
January 22, 2010. The alert service bulletin describes procedures for
installing new operational program software for the left, center, and
right AFDCs. The new software will disengage the autopilot whenever the
flaps are extended and the airplane is on the ground and not in rollout
mode. Autopilot engagement is inhibited when the flaps are extended and
the airplane is on the ground or below 50 feet above ground level. The
new software also maintains the initial engine-out (performance-
limited) takeoff pitch target for a longer duration to minimize
altitude loss during the takeoff, and targets a velocity to maximize
climbout performance.

FAA's Determination and Requirements of This AD

    We are issuing this AD because we evaluated all the relevant
information and determined the unsafe conditions described previously
are likely to exist or develop in other products of these same type
designs. This AD requires accomplishing the actions specified in the
service information described previously, except as discussed under
``Differences Between the AD and the Service Information.''

Differences Between the AD and the Service Information

    Although Boeing Alert Service Bulletin 777-22A0024, dated January
22, 2010, recommends accomplishing the operational program software
installation ``within 12 months after the original issue date of this
service bulletin,'' we have determined that this compliance time would
not address the identified unsafe conditions in a timely manner. In
developing an appropriate compliance time for this AD, we considered
not only the manufacturer's recommendation, but the degree of urgency
associated with addressing the subject unsafe condition, the average
utilization of the affected fleet, and the time necessary to perform
the operational program software installation. In light of all of these
factors, we find a compliance time of 90 days after the effective date
of this AD for completing the required actions to be warranted, in that
it represents an appropriate interval of time for affected airplanes to
continue to operate without compromising safety. This difference has
been coordinated with The Boeing Company.

FAA's Justification and Determination of the Effective Date

    A rejected takeoff at rotation speed significantly increases the
risk of a runway overrun, and a lower-than-optimal climb gradient
during a performance-limited takeoff drastically increases the risk of
failure of the airplane to clear obstacles on the ground during the
initial climb phase after takeoff. Both of these conditions can result
in fatal injury to flightcrew, passengers, and people on the ground, as
well as extensive damage to the airplane and property on the ground.
Because of our requirement to promote safe flight of civil aircraft and
thus the critical need to ensure the proper functioning of the
autopilot flight director system, in addition to the two recent reports
and the short compliance time involved with this action, this AD must
be issued immediately.
    Because an unsafe condition exists that requires the immediate
adoption of this AD, we find that notice and opportunity for prior
public comment hereon are impracticable and that good cause exists for
making this amendment effective in less than 30 days.

Comments Invited

    This AD is a final rule that involves requirements affecting flight
safety, and we did not provide you with notice and an opportunity to
provide your comments before it becomes effective. However, we invite
you to send any written data, views, or arguments about this AD. Send
your comments to an address listed under the ADDRESSES section. Include
``Docket No. FAA-2010-0221; Directorate Identifier 2010-NM-043-AD'' at
the beginning of your comments. We specifically invite comments on the
overall regulatory, economic, environmental, and energy aspects of this
AD. We will consider all comments received by the closing date and may
amend this AD because of those comments.
    We will post all comments we receive, without change, to http://
www.regulations.gov, including any personal information you provide. We
will also post a report summarizing each substantive verbal contact we
receive about this AD.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. ``Subtitle VII: Aviation
Programs,'' describes in more detail the scope of the Agency's
authority.
    We are issuing this rulemaking under the authority described in
``Subtitle VII, Part A, Subpart III, Section 44701: General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.

Regulatory Findings

    This AD will not have federalism implications under Executive Order
13132. This AD will not have a substantial direct effect on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government.
    For the reasons discussed above, I certify that this AD:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866,
    (2) Is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979), and
    (3) Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.
    You can find our regulatory evaluation and the estimated costs of
compliance in the AD Docket.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

Adoption of the Amendment

0
Accordingly, under the authority delegated to me by the Administrator,
the FAA amends 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new AD:

2010-06-09 The Boeing Company: Amendment 39-16233. Docket No. FAA-
2010-0221; Directorate Identifier 2010-NM-043-AD.

Effective Date

    (a) This airworthiness directive (AD) is effective April 1,
2010.

Affected ADs

    (b) None.

Applicability

    (c) This AD applies to The Boeing Company Model 777-200, -200LR,
-300, -300ER, and 777F series airplanes, certificated in any
category; as identified in Boeing Alert Service Bulletin 777-
22A0024, dated January 22, 2010.

Subject

    (d) Air Transport Association (ATA) of America Code 22: Auto
Flight.

Unsafe Condition

    (e) This AD results from reports of rejected takeoffs at speeds
above takeoff decision speed following inadvertent autopilot
engagement on the ground, and from the discovery during flight
simulations that the climb gradient is less than optimal for
obstacle clearance during a performance-limited takeoff situation.
The Federal Aviation Administration is issuing this AD to prevent
inadvertent engagement of the autopilot during takeoff roll, which
could result in rejected takeoff at rotation speed, and consequent
possible overrun of the runway. We are also issuing this AD to
prevent a lower-than-optimal climb gradient during takeoff, and
consequent failure to clear obstacles on the ground during a
performance-limited takeoff.

Compliance

    (f) You are responsible for having the actions required by this
AD performed within the compliance times specified, unless the
actions have already been done.

Software Installation for the Autopilot Flight Director Computers

    (g) Within 90 days after the effective date of this AD, install
new operational program software in the left, center, and right
autopilot flight director computers, in accordance with the
Accomplishment Instructions of Boeing Alert Service Bulletin 777-
22A0024, dated January 22, 2010.

Special Flight Permit

    (h) Special flight permits, as described in Section 21.197 and
Section 21.199 of the Federal Aviation Regulations (14 CFR 21.197
and 21.199), are not allowed.

Alternative Methods of Compliance (AMOCs)

    (i)(1) The Manager, Seattle Aircraft Certification Office (ACO),
FAA, has the authority to approve AMOCs for this AD, if requested
using the procedures found in 14 CFR 39.19. Send information to
Attn: Frank van Leynseele, Aerospace Engineer, Systems and Equipment
Branch, ANM-130S, FAA, Seattle Aircraft Certification Office, 1601
Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425)
917-6492; fax<PHONE_NUMBER>. Information may be e-mailed to: 9-ANM-
<EMAIL_ADDRESS>    (2) To request a different method of compliance or a different
compliance time for this AD, follow the procedures in 14 CFR 39.19.
Before using any approved AMOC on any airplane to which the AMOC
applies, notify your principal maintenance inspector (PMI) or
principal avionics inspector (PAI), as appropriate, or lacking a
principal inspector, your local Flight Standards District Office.
The AMOC approval letter must specifically reference this AD.

Material Incorporated by Reference

    (j) You must use Boeing Alert Service Bulletin 777-22A0024,
dated January 22, 2010, to do the actions required by this AD,
unless the AD specifies otherwise.
    (1) The Director of the Federal Register approved the
incorporation by reference of this service information under 5
U.S.C. 552(a) and 1 CFR part 51.
    (2) For service information identified in this AD, contact
Boeing Commercial Airplanes, Attention: Data & Services Management,
P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone
206-544-5000, extension 1; fax<PHONE_NUMBER>; e-mail
<EMAIL_ADDRESS>Internet https://www.myboeingfleet.com.
    (3) You may review copies of the service information at the FAA,
Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton,
Washington. For information on the availability of this material at
the FAA, call<PHONE_NUMBER> or<PHONE_NUMBER>.
    (4) You may also review copies of the service information that
is incorporated by reference at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, call<PHONE_NUMBER>, or go to: http://
www.archives.gov/federal_register/code_of_federal_regulations/
ibr_locations.html.

    Issued in Renton, Washington, on March 3, 2010.
Suzanne Masterson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 2010-5290 Filed 3-16-10; 8:45 am]
BILLING CODE 4910-13-P


B.  	SURVEY APPROACH

INTRODUCTION

This study approach is designed such that it includes the entire
population of beachgoers at each study site.  This includes swimmers and
nonswimmers of all ages with the exception of unaccompanied minors
(since an adult is necessary to provide informed consent).

Survey Objectives and Key Variables

The objective of this study is to conduct health effects studies to
evaluate exposure to water quality indicators in recreational waters and
their subsequent relationship to health effects.  The beaches will be
chosen to consider a range of exposures.  There are four key variables
considered in this study; health status, water quality measures,
environmental exposures and potential confounders.  Each of these
variables is considered in the development of the study objectives.

Health status of the respondents includes health symptoms experienced
prior, during, and after the beach visit (10-12 days after).  Such
symptoms include: diarrhea, vomiting, sore throat earache, eye
infection, rash, sunburn, and fever.

Water quality measures will be collected in the same beach areas on the
same days as the health data collection.

Environmental exposures include activities in the designated beach area.
 These include digging in the sand, swimming in the water, snorkeling,
collecting seashells, or length of time in the water.

Potential confounders are possible other symptom determinants that are
not related to the environmental exposure of interest (coastal
recreational water).  These include demographic factors such as age,
sex, race, and specific behaviors such as contact with animals,
consumption of specific foods and contact with other types of water.

Survey Design

The health survey is administered by bilingual interviewers
(English-Spanish) in three parts: enrollment, exit interview, and
telephone interview.  Both the enrollment and the exit interviews are
completed at the beach.  A second interview is completed by calling the
family at home.

Beach Interview:  The enrollment (Part A) is done shortly after the
family settles in the beach area.  This part of the questionnaire
provides the EPA with information about household health status and it
also limits the amount of time the participants must spend on the
interview as they are leaving the beach.  Part A of the questionnaire
obtains individual-level information on health status and potential
confounders such as age, sex, race, ethnicity, housing characteristics,
family characteristics, and behaviors.  Part B (exit beach interview)
captures data about potential exposures.  The information collected
includes the day’s activities, food and water consumption, potential
water exposure (extent, time, duration, and location), and other
potential confounders.

Telephone interview:  Study participants are contacted by phone 10 to 12
days after visiting the beach. An adult caregiver, preferably the same
one interviewed at the beach, is asked a series of questions about
family members’ swimming activities, other exposures, health status,
and the severity of any illnesses reported since the initial beach
visit.  Questions cover enteric and nonenteric illness (GI, respiratory,
ear, eye, skin irritations, and urinary tract infections).

  SEQ CHAPTER \h \r 1

Pretests, Pilot Tests

The beach interview is based on previous questionnaires used in the
studies conducted by EPA in the 1970s and 1980s.  These questions have
been compared to and when possible modifications made to be compatible
with the Centers for Disease Control and Prevention, National Center for
Infectious Diseases FoodNet survey.  In addition, similar questions have
been used in drinking water studies (ref Payment 1, Payment 2, Calderon,
Colford).  Respiratory symptoms have been adapted from the Epidemiology
Standardization Project of the American Thoracic Society and the
Division of Lung Diseases.  Also, the questionnaire was evaluated after
the beach pilot study in 2002.  Modifications of the questionnaire
wording were made based on that experience.  Between the years of 2003
and 2007, the questions were minimally altered to resolve participation
comprehension due to language culture.  Other questionnaire changes are
submitted each year the study is conducted to the Office of Management
and Budget (OMB).  It is anticipated that questionnaire modifications
after this date will not vary from the current format.

Collection Methods

The study is a prospective cohort   SEQ CHAPTER \h \r 1 study. Trained
interviewers disperse on the beach and visually identify households
eligible to participate.  The goal is to approach and offer enrollment
to all beach-goers between 11:00 a.m. and 5:00 p.m.  Interviewers
approach beach-goers on weekends and holidays during the recreational
season (Generally April to mid September depending on the geographic
location).  An adult (age 18 or older; 19 in Alabama) answers questions
for other household members.  All contacts on the beach are given either
a flag or colored tape to signify they have been approached to avoid
repeatedly disturbing them.  Respondents are given an inexpensive gift
(cooler or tote bag) following completion of the exit interview.

Consent process:  The study protocol and questionnaire were reviewed by
the Institutional Review Board (IRB) for the Centers for Disease Control
and Prevention and approved by the EPA Human Subjects Review Official.
A waiver of written informed consent for the enrollment process was
obtained.

Consent brochure:  This document serves as the verbal consent form and
included information about the benefits of participation (incentives and
public health improvements for beach users), potential disadvantages of
participation (time), absence of health risk, confidentiality,
information dissemination, contact information for investigators, IRB,
and contractor (email address, telephone number, and a website for the
project).  Study participation is completely voluntary and the
participant may withdraw at any time and refuse to answer any individual
questions.

Incentives:  Incentives are provided to participants to encourage
completion of the beach questionnaire on enrollment day (e.g., tote bag,
cooler, or beach-related item). Upon completion of the follow-up
telephone interviews, a $25 check is issued to each household.

Eligibility criteria:  Potential enrollees had to meet the following
criteria:

1) have a household member legal age to participate (generally at least
age 18),

2) participate in the study and complete the telephone interview,

3) have not participated in the study within the prior 28 days.

Quality control:  EPA developed and implements a Quality Assurance
Project Plan prior to the conduct of any data collection.  In addition,
EPA sends a Quality Assurance Team to perform a Technical Systems Review
at each beach to assure the plan was being adhered to and also to review
procedures carried out at the beach.

Data entry, management, and security: A computer-assisted personal
interview device (CAPI) equipped with a template of the questionnaire is
used to collect the information at the enrollment and exit interviews.
This device is a lightweight, hand-held tablet computer tolerant of
extreme environmental conditions.  The CAPI program flags missing items
prior to terminating the interview and also flags erroneous responses to
allow the interviewer to obtain the correct information while
interviewing the household.  All data are kept in locked cabinets or in
password-protected computers.  All data is removed from the computers
daily and they are always secured at the beach site.  Networks are
protected with a firewall to prevent unauthorized access to agency
networks.  Personal identifying information is stored separately from
questionnaire and telephone survey information, and all personal
information was removed from analytical databases.  Following completion
of the final follow-up survey at the end of the study, participant
personal identifiers were unlinked from the data.

The phone interview is conducted using a similar program and a
computer-assisted telephone interview (CATI) system.  The CATI system
automatically flags missing or erroneous data prior to termination of
the interview.  Telephone interviews are conducted from secured research
facilities.  Each of these devices reduces data entry errors that result
from data transfer in traditional paper-based studies.

Paper Reduction Act:  The questionnaires and study protocol were
published in the Federal Register and public comment was requested.  The
comments and the estimated burden of the questionnaire were reviewed and
approved by the Office of Management and Budget.  The OMB number for
this study is 2080.0068.

Analyzing Survey Results

The primary goal of the data analysis is to evaluate the relationship
between novel and rapid measures of water quality and health effects and
determine whether the new approaches to measuring water quality would be
useful in protecting beach-goers health.  If these methods prove to be
useful, then they have potential to be used in criteria and guideline
development.  A second goal is to conduct subgroup analysis on
particular sensitive subpopulations such as children and the elderly.

Analyses will be conducted by comparing gastrointestinal and other
health symptoms by swimming and non-swimming status and by exposure to
varying levels of water quality measures.

At the completion of the entire program, an overall report will be
produced that synthesizes all the information.  An EPA report will be
produced for Agency and public use.  A manuscript for each recreational
season will be submitted for publication in a peer-reviewed scientific
journal.

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