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[Federal Register: April 1, 2010 (Volume 75, Number 62)]
[Rules and Regulations]               
[Page 16357-16358]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01ap10-16]                         

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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: Final rule.

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SUMMARY: The Department of Transportation is removing the ``sunset'' 
provision from its rule governing the airport concessions disadvantaged 
business enterprise (ACDBE) program. The revised rule instead provides 
reviewing the program to ensure that it is being effectively 
implemented.

DATES: This rule is effective April 1, 2010.

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, bob.ashby@dot.gov.

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 is useful to begin reviewing the 
provisions of part 23 at this time, for the purpose of

[[Page 16358]]

determining of 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, as part of the notice of 
proposed rulemaking (NPRM) for this final rule (73 FR 5551; February 3, 
2010), the Department solicited 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 proposed to amend section 23.7 by 
removing the ``sunset'' language and substituting a requirement for 
program review. The Department received only one comment to the docket, 
from an advocacy organization that opposes any use of race-conscious 
measures to remedy discrimination and its continuing effects. The 
commenter suggested that the regulation should be allowed to go out of 
effect, since, in the commenter's view, there is no current 
justification for the use of race-conscious remedies in DOT programs. 
The Department does not agree with this commenter. Federal Courts have 
unanimously found that DOT's DBE rules are constitutional, and the 
information presented in the March 2009 House of Represntatives hearing 
referenced above provides strong evidence of the continuing need for 
the DBE program in aviation and other transportation contexts.
    We believe that the rationale for the proposed amendment to section 
23.7 is sound, and we are, therefore, issuing this final rule deleting 
the ``sunset provision.''

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 embodied in this rule 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 remove the ``sunset'' provision and substitute the program 
review approach at this time.
    In order to ensure that this amendment goes into effect before the 
April 21, 2010, date on which the existing sunset provision would 
terminate part 23, it is necessary for the amendment to become 
effective before that date. For this reason, the Department finds good 
cause, under section 553 of the Administrative Procedure Act, to make 
the rule effective immediately.

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 does not 
impose any costs or burdens on grantees or other parties and simply 
keeps 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 does 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.

    Issued at Washington, DC, March 25, 2010.
Ray LaHood,
Secretary of Transportation.

0
For reasons discussed in the preamble, the Department of Transportation 
amends Title 49 of the Code of Federal Regulations, part 23, as 
follows:
0
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.


0
2. Section 23.7 is 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. 2010-7401 Filed 3-31-10; 8:45 am]
BILLING CODE 4910-9X-P
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