[Code of Federal Regulations]
[Title 49, Volume 1]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR23.95]

[Page 193-195]
 
                        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.  23.95  Elements of Disadvantaged Business Enterprise (DBE) concession plan.

    (a) Overall annual DBE goals. (1) The sponsor shall establish an 
overall goal for the participation of DBE's in concessions for each 12-
month period covered by the plan. The goals shall be consistent with the 
process for setting overall goals set forth in 49 CFR 26.45.
    (2) Sponsors shall calculate the overall DBE goal as a percentage of 
one of the following bases:
    (i) The estimated gross receipts that will be earned by all 
concessions operating at the airport during the goal period. (Where the 
terms of a concession agreement do not provide for the sponsor to know 
the gross receipts, the sponsor shall use the net payment to the airport 
for such agreements and combine these figures with the estimated gross 
receipts from other agreements, for purposes of making this calculation. 
The plan shall indicate which concession agreements do not provide for 
the sponsor to know the gross receipts.)
    (ii) The total number of concession agreements operating at the 
airport during the goal period.
    (3) The plan shall state which base the sponsor proposes to use for 
calculating the overall goals. Sponsors proposing to use the base 
described in paragraph (a)(2)(ii) of this section shall submit a 
rationale as required by Sec.  23.99.
    (4) Sponsors who will employ the procedures of paragraph (a)(2)(i) 
of this section shall exclude from the overall goal any portion of a 
firm's estimated gross receipts that will not be generated from a 
concession activity.

    Example. A firm operates a restaurant in the airport terminal which 
services the travelling public and under the same lease agreement, 
provides in-flight catering service to the air carriers. The projected 
gross receipts from the restaurant are included in the overall goal 
calculation, while the gross receipts to be earned by the in-flight 
catering service are excluded.

    (5) Sponsors who will employ the procedures of paragraph (a)(2)(i) 
of this section shall use the net payment to the airport for banks and 
banking services, including automated teller machines (ATM) and foreign 
currency exchanges.
    (6) To the extent practicable, sponsors shall seek to obtain DBE 
participation in all types of concession activities and not concentrate 
participation in one category or a few categories to the exclusion of 
others.
    (7) Airport sponsors may establish an overall annual goal exceeding 
10 percent.
    (b) Goal methodology. (1) The plan shall contain a description of 
the methodology used in establishing each of the overall DBE goals. The 
methodology shall include information on the concessions that will 
operate at the airport during the period covered by the plan and the 
potential for DBE participation. For each concession agreement, the 
sponsor shall provide the following information, together with an 
additional information requested by the Regional Civil Rights Officer:
    (i) Name of firm.
    (ii) Type of business (e.g. bookstore, car rental, baggage carts).
    (iii) Beginning and expiration dates of agreement, including options 
to renew.
    (iv) For new agreements, method of solicitation proposed by sponsor 
(e.g. request for proposals, invitation for bids).
    (v) Dates that material amendments will be made to the agreement (if 
known).
    (vi) Estimated gross receipts for each goal period established in 
the plan.
    (vii) Identification of those concessionaires that have been 
certified under this subpart as DBE's.
    (viii) An indication of those concessions having potential for 
participation by DBE's.
    (2) The plan shall include a narrative description of the types of 
efforts the sponsor intends to make, in accordance with paragraph (h) of 
this session, to achieve the overall annual goals.
    (3) Sponsors who will include a DBE contract goal or other 
requirements in solicitations for concession agreements shall state 
those requirements in the plan.
    (4) If none of the overall goals set under paragraph (a)(2)(i) or 
(a)(2)(ii) of this section is 10 percent or more, the sponsor shall 
submit the information

[[Page 194]]

and follow the procedures outlined in Sec.  23.101.
    (c) DBE set-asides. (1) Where not prohibited by state or local law 
and determined by the sponsor to be necessary to meet DBE goals, 
procedures to implement DBE set-asides shall be established. The DBE 
plan shall specify the concessions to be set-aside.
    (2) If a state or local law prohibits the use of set-asides in the 
award of concessions, a citation of the appropriate authority shall be 
included in the plan.
    (d) Accomplishments in achieving DBE goals. The plan shall contain 
an analysis of the accomplishments made by the sponsor toward achieving 
the previous year's goal. The plan shall show the effect of those 
results on the overall level of DBE participation in the airport's 
concessions.
    (e) Explanation for not achieving a goal. (1) If the analysis 
required under paragraph (d) of this section indicates that the sponsor 
failed to meet the previous year's overall goal, the plan shall include 
a statement of the reasons demonstrating why failure to meet the goal 
was beyond the sponsor's control.
    (2) If the FAA determines that the reasons given by the sponsor are 
not sufficient justification, or if the sponsor fails to state any 
reasons, the FAA may require the sponsor to implement appropriate 
remedial measures. Such measures may include an adjustment to the 
overall goals of the concession plan.
    (f) Certification procedures. (1) The certification procedures set 
forth in 49 CFR part 26, subpart E are applicable to this subpart. 
Sponsors may count toward their overall goals only those firms that have 
been certified in accordance with the procedures of that section.
    (2)-(3) [Reserved]
    (4) Prior to making a certification determination, the sponsor shall 
perform an on-site visit to the offices of the firm and to any of its 
facilities that may be necessary to validate the certification 
information obtained from the firm.
    (g) Certification standards. (1) Sponsors shall use the same 
standards for ownership and control as contained in 49 CFR part 26, 
subpart D in determining whether a firm may be certified as a DBE.
    (2) Businesses operating under the following structures may be 
eligible for certification as DBE's under this subpart:
    (i) Sole proprietorships.
    (ii) Corporations.
    (iii) Partnerships.
    (iv) Other structures that provide for ownership and control by the 
socially and economically disadvantaged owners.
    (3) A business operating under a franchise (or license) agreement 
may be certified if it meets the standards in this section and the 
franchisor is not affiliated with the franchisee.

In determining whether affiliation, as defined in Sec.  23.89, exists, 
the restraints relating to standardized quality, advertising, accounting 
format, and other provisions imposed on a franchisee by its franchise 
agreement generally shall not be considered, provided that the 
franchisee has the right to profit from its efforts and bears the risk 
of loss commensurate with ownership. Alternatively, even though a 
franchisee may not be controlled by the franchisor by virtue of such 
provisions in the franchise agreement, control, and, thus, affiliation 
could arise through other means, such as common management or excessive 
restrictions upon the sale of the franchise interest.
    (4) Joint ventures described in Sec.  23.53(d) are eligible for 
certification as DBE's under this subpart.
    (h) Businesses operating under the following arrangements are not 
eligible for certification as DBE's under this subpart:
    (1) Limited partnerships, in which a non-DBE is the general partner.
    (2) Other arrangements that do not provide for ownership and control 
by the socially and economically disadvantaged owners.
    (i) Good faith efforts. The sponsor shall make good faith efforts to 
achieve the overall goals of the approved plan. The efforts shall 
include:
    (1) Locating and identifying DBE's who may be interested in 
participating as concessionaires;
    (2) Notifying DBE's and other organizations of concession 
opportunities and

[[Page 195]]

encouraging them to compete, when appropriate;
    (3) Informing competitors for concession opportunities of any DBE 
requirements during pre-solicitation meetings;
    (4) Providing information concerning the availability of DBE firms 
to competitors to assist them in meeting DBE requirements; and
    (5) When practical, structuring contracting activities so as to 
encourage and facilitate the participation of DBE's.

[Amdt. 1, 57 FR 18410, Apr. 30, 1992, as amended at 64 FR 5126, Feb. 2, 
1999; 64 FR 34570, June 28, 1999]