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Proposed Rule

Participation by Disadvantaged Business Enterprises in Airport Concessions

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Information about this document as published in the Federal Register.

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Office of the Secretary (OST), DOT.


Notice of proposed rulemaking.


The Department of Transportation is proposing to remove the “sunset” provision from its rule governing the airport concessions disadvantaged business enterprise program. The rule would instead provide for periodic program reviews. In addition, in the interest of initiating a program review, the Department is soliciting comments on any changes that should be made in the rule. These comments would assist the Department in reviewing the rule and, if warranted, proposing modifications to it in the future.


Comments on the proposal to remove the sunset provision must be received by March 5, 2010. Responses to the request for comments on potential modifications to the rule must be received by November 1, 2010. Late-filed comments will be considered to the extent practicable.


You may submit comments (identified by the agency name and DOT Docket ID Number OST-2010-0022) by any of the following methods:

  • Federal eRulemaking Portal: Go to and follow the online instructions for submitting comments.
  • Mail: Docket Management Facility: U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.
  • Hand Delivery or Courier: West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
  • Fax: 202-493-2251.

Instructions: You must include the agency name (Office of the Secretary, DOT) and Docket number (OST-2010-0022) for this notice at the beginning of your comments. You should submit two copies of your comments if you submit them by mail or courier. Note that all comments received will be posted without change to including any Start Printed Page 5552personal information provided and will be available to internet users. You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477) or you may visit

Docket: For internet access to the docket to read background documents and comments received, go to Background documents and comments received may also be viewed at the U.S. Department of Transportation, 1200 New Jersey Ave, SE., Docket Operations, M-30, West Building Ground Floor, Room W12-140, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

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Robert C. Ashby, Deputy Assistant General Counsel for Regulation and Enforcement, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590, Room W94-302, 202-366-9310,

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When the Department issued its final rule revising its ACDBE rule (49 CFR Part 23) in 2005, the rule included at section 23.7 a “sunset” provision. This provision said unless extended by the Department, the provisions of Part 23 would terminate and become inoperative on April 21, 2010. The preamble to the rule explained the rationale for this provision as follows:

The Department is introducing a “sunset” provision into the final rule as a way of addressing the durational element of narrow tailoring. A narrowly-tailored rule is not intended to remain in effect indefinitely. Rather, the rule should be reviewed periodically to ensure that it continues to be needed and that it remains a constitutionally appropriate way of implementing its objectives. Consequently, this provision states that this rule will terminate and cease being operative in five years, unless the Department extends it. We intend, beginning four years from now, to review the rule to determine whether it should be extended, modified, or allowed to expire. Of course, the underlying DBE statute remains in place, and its requirements continue to apply regardless of the status of this regulation, absent future Congressional action. (70 FR 14502; March 22, 2005).

The Department believes that it would be useful to begin reviewing the provisions of Part 23 at this time, for the purpose of determining what, if any, modifications, are appropriate to improve its operations, in context of the “strict scrutiny” requirements of narrowly tailoring a program to meet a compelling need to combat discrimination and its effects. Consequently, with this notice, the Department is soliciting comments from interested parties concerning any and all changes to Part 23 they believe would be useful in helping the Department, airports, ACDBEs, and other airport-related businesses to achieve the ACDBE program's objectives. The Department will use the information we receive to assist us in determining whether to issue a proposed rule to modify the ACDBE regulation. In addition, the Department is planning to meet with stakeholders, at times and places to be determined, to discuss potential changes to Part 23.

However, the Department does not believe it is appropriate to retain the “sunset” provision itself. The Department can, and will, review the provisions of the rule without this provision being in place. Moreover, as the preamble discussion for section 23.7 itself pointed out, the ACDBE program is mandated by statute. The Department does not believe that it would be meaningful to eliminate a regulation when its underlying statutory mandate remains applicable to airports and other participants. Doing so would simply cause confusion and disruption, making it more difficult for all parties concerned to carry out their responsibilities under the statute, which is not self-executing. A regulatory framework is necessary for rational implementation of the statute. Periodic program reviews by the Department, as well as consideration from time to time of the continuing need for the program by Congress, meet the durational element of narrow tailoring satisfactorily.

Moreover, the Department is convinced that programs like those in 49 CFR part 23 and its companion DBE rule, 49 CFR part 26, remain necessary to redress discrimination and its effects in airport programs and to ensure a level playing field for small businesses owned and controlled by socially and economically disadvantaged individuals. The extensive evidence provided to a March 2009 hearing of the House Transportation and Infrastructure Committee on this subject, and the findings of continuing need for DBE programs in the House-passed version of the Federal Aviation Administration reauthorization bill (H.R. 915), as well as the Department's long-term experience in operating the program, support this conclusion.

For these reasons, the Department proposes to amend section 23.7 by removing the “sunset” language and substituting a requirement for program review. The current notice initiates such a review. The opportunity for stakeholder input and public comment is part of this review. The Department seeks comment on whether the final rule should state a specific interval for future program reviews or whether this determination should, as stated in the text of the proposed amendment to the rule, be left to the Department's discretion.

Regulatory Analyses and Notices

Administrative Procedure Act

Having considered the potentially high risk of disruption posed by the current “sunset” provision, the Department believes that the program review approach proposed by this NPRM provides a better way of achieving the objective of ensuring that the durational element of narrow tailoring is achieved. In order to ensure that all parties understand that the program and regulation will continue without interruption or uncertainty, the Department believes that it is important to propose removing the provision at this time and substituting the program review approach at this time. A short comment period is essential in order to permit a final rule to be issued before April 21, 2010. We also believe that beginning the program review now, rather than later, will serve the interests of the program and program participants well.

Executive Order 12866 and Regulatory Flexibility Act

The Department has determined that this action is not a significant regulatory action for purposes of Executive Order 12866 or the Department's regulatory policies and procedures. The rule would not impose any costs or burdens on grantees or other parties and would keep in place the opportunity for interested parties to participate in a program review. It makes no changes in the obligations of any party. For these reasons, the Department certifies that the rule would not have a significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

This rule does not create any information collection requirements covered by the Paperwork Reduction Act.

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List of Subjects in 49 CFR Part 23

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Issued at Washington, DC this 20th day of January 2010.

Raymond F. LaHood,

Secretary of Transportation.

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For reasons discussed in the preamble, the Department of Transportation proposes to amend Title 49 of the Code of Federal Regulations, Part 23, as follows:

1. The authority citation for 49 CFR Part 23 continues to read as follows:

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Authority: 49 U.S.C. 47107; 42 U.S.C. 2000d; 49 U.S.C. 322; Executive Order 12138.

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2. Section 23.7 is proposed to be revised to read as follows:

Program Reviews.

In 2010, and thereafter at the discretion of the Secretary, the Department will initiate a review of the ACDBE program to determine what, if any, modifications should be made to this Part.

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[FR Doc. 2010-2293 Filed 2-2-10; 8:45 am]