[Federal Register Volume 75, Number 22 (Wednesday, February 3, 2010)]
[Proposed Rules]
[Pages 5551-5553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2293]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 23

[Docket No. OST-2010-0022]
RIN 2105-AD88


Participation by Disadvantaged Business Enterprises in Airport 
Concessions

AGENCY: Office of the Secretary (OST), DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: 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.

DATES: 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.

ADDRESSES: 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 http://www.regulations.gov 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 http://www.regulations.gov 
including any

[[Page 5552]]

personal 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 
http://DocketsInfo.dot.gov.
    Docket: For internet access to the docket to read background 
documents and comments received, go to http://www.regulations.gov. 
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.

FOR FURTHER INFORMATION CONTACT: 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, [email protected].

SUPPLEMENTARY INFORMATION: 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.

List of Subjects in 49 CFR Part 23

    Administrative practice and procedures, Airports, Civil rights, 
Government contracts, Grant programs--transportation, Minority 
business, Reporting and recordkeeping requirements.


[[Page 5553]]


    Issued at Washington, DC this 20th day of January 2010.
Raymond F. LaHood,
Secretary of Transportation.

    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:


PART 23--[AMENDED]  

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

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

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


Sec.  23.7  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.

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