[Code of Federal Regulations]
[Title 49, Volume 1]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR23.89]

[Page 202-203]
 
                        TITLE 49--TRANSPORTATION
 
          SUBTITLE A--OFFICE OF THE SECRETARY OF TRANSPORTATION
 
PART 23--PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISE IN AIRPORT CONCESSIONS--Table of Contents
 
   Subpart F--Implementation of Section 511(a)(17) of the Airport and 
               Airway Improvement Act of 1982, as Amended
 
Sec. 23.89  Definitions.

    Source: Amdt. 1, 57 FR 18410, Apr. 30, 1992, unless otherwise noted.


    Affiliation has the same meaning the term has in regulations of the 
Small Business Administration, 13 CFR part 121. Except as otherwise 
provided in 13 CFR part 121, concerns are affiliates of each other when, 
either directly or indirectly
    (a) One concern controls or has the power to control the other, or
    (b) A third party or parties controls or has the power to control 
both, or
    (c) An ``identity of interest'' between or among parties exists such 
that affiliation may be found.
    In determining whether affiliation exists, consideration shall be 
given to all appropriate factors, including common ownership, common 
management, and contractual relationships.
    Concession means a for-profit business enterprise, located on an 
airport subject to this subpart, that is engaged in the sale of consumer 
goods or services to the public under an agreement with the sponsor, 
another concessionaire, or the owner of a terminal, if other than the 
sponsor. Businesses which conduct an aeronautical activity are not 
considered concessionaires for purposes of this subpart. Aeronautical 
activities include scheduled and nonscheduled air carriers, air taxis, 
air charters, and air couriers, in their normal passenger or 
freightcarrying capacities; fixed base operators, flight schools; and 
sky-diving, parachute-jumping, flying guide services, and helicopter or 
other air tours.
    (a) Appendix A to this subpart contains a listing of the types of 
businesses that are frequently operated as concessions.
    (b) Examples of entities that do not meet the definition of a 
concession include suppliers, flight kitchens and in-flight caterers 
servicing air carriers, government agencies, industrial plants, farm 
leases, individuals leasing hangar space, custodial and security 
contracts, individual taxis with permits, telephone and electric 
utilities, skycap services under contract with an air carrier, and 
management contracts.
    (c) Concessions may be operated under the following types of 
agreements:
    (1) Leases.
    (2) Subleases.
    (3) Permits.
    (4) Contracts.
    (5) Other instruments or arrangements.
    Concessionaire means one who operates a concession.
    Disadvantaged business shall have the same meaning as set forth in 
49 CFR part 26, except it shall be a small business concern, as defined 
in this subpart, not as defined in 49 CFR part 26.
    Material amendment means a substantial change to the basic rights or 
obligations of the parties to a concession agreement. Examples of 
material amendments include an extension to the term not provided for in 
the original agreement or a substantial increase in the scope, of the 
concession privilege. Examples of nonmaterial amendments include a 
change in the name of the concessionaire or a change to the payment due 
dates.
    Primary airport means a commercial service airport which is 
determined by the Secretary to have more than 10,000 passengers enplaned 
annually.
    Small business concern means a firm, including all its domestic and 
foreign affiliates, that qualifies under the applicable size standard 
set forth in appendix A to this subpart. In making a size determination, 
all affiliates, regardless of whether organized for profit, must be 
included. A firm qualifying under this definition that exceeds the size 
standard after entering a concession agreement, but that otherwise 
remains eligible, may continue to be counted as DBE participation until 
the current agreement, including the exercise of options, expires.
    (a) The Secretary may periodically adjust the size standards in 
appendix A to this subpart for inflation.

[[Page 203]]

    (b) A firm that was certified as a minority/woman/or disadvantaged 
business enterprise (MBE/WBE/DBE) prior to the effective date of this 
subpart, pursuant to a requirement in Sec. 23.43(d) in effect prior to 
March 4, 1999 (See 49 CFR Parts 1 to 99 revised as of October 1, 1998.) 
or FAA guidance implementing section 511(a)(17) of the Airport and 
Airway Improvement Act of 1982, as amended, that has exceeded the size 
standard, may be counted as DBE participation until the current 
agreement, including the exercise of options, expires, provided that the 
firm remains otherwise eligible.
    Socially and economically disadvantaged individuals shall have the 
same meaning as set forth in 49 CFR part 26.
    Sponsor means the recipient of an FAA grant.

[Amdt. 1, 57 FR 18410, Apr. 30, 1992, as amended at 64 FR 5126, Feb. 2, 
1999]