[Federal Register Volume 75, Number 62 (Thursday, April 1, 2010)]
[Rules and Regulations]
[Pages 16357-16358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7401]
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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, [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 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.
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For reasons discussed in the preamble, the Department of Transportation
amends Title 49 of the Code of Federal Regulations, part 23, as
follows:
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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.
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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]
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