[Code of Federal Regulations]
[Title 49, Volume 1]
[Revised as of October 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR23.13]

[Page 206-207]
 
                        TITLE 49--TRANSPORTATION
 
          Subtitle A--Office of the Secretary of Transportation
 
PART 23_PARTICIPATION OF DISADVANTAGED BUSINESS ENTERPRISE IN AIRPORT 
CONCESSIONS--Table of Contents
 
                            Subpart A_General
 
Sec.  23.13  How does the Department issue guidance, interpretations, 
exemptions, and waivers pertaining to this part?

    (a) Only guidance and interpretations (including interpretations set 
forth in certification appeal decisions) consistent with this part 23 
and issued after April 21, 2005 have definitive, binding effect in 
implementing the provisions of this part and constitute the official 
position of the Department of Transportation.
    (b) Written interpretations and guidance are valid and binding, and 
constitute the official position of the Department of Transportation, 
only if they are issued over the signature of the Secretary of 
Transportation or if they contain the following statement:

    The General Counsel of the Department of Transportation has reviewed 
this document and approved it as consistent with the language and intent 
of 49 CFR part 23.

    (c) You may apply for an exemption from any provision of this part. 
To apply, you must request the exemption in writing from the Office of 
the Secretary of Transportation or the FAA. The Secretary will grant the 
request only if it documents special or exceptional circumstances, not 
likely to be generally applicable, and not contemplated in connection 
with the rulemaking that established this part, that make your 
compliance with a specific provision of this part impractical. You must 
agree to take any steps that the Department specifies to comply with the 
intent of the provision from which an exemption is granted. The 
Secretary will issue a written response to all exemption requests.
    (d) You can apply for a waiver of any provision of subpart B or D of 
this part including, but not limited to, any provisions regarding 
administrative requirements, overall goals, contract goals or good faith 
efforts. Program waivers are for the purpose of authorizing you to 
operate an ACDBE program that achieves the objectives of this part by 
means that may differ from one or more of the requirements of subpart B 
or D of this part. To receive a program waiver, you must follow these 
procedures:
    (1) You must apply through the FAA. The application must include a 
specific program proposal and address how you will meet the criteria of 
paragraph (d)(2) of this section. Before submitting your application, 
you must have had public participation in developing your proposal, 
including consultation with the ACDBE community and at least one public 
hearing. Your application must include a summary of the public 
participation process and the information gathered through it.
    (2) Your application must show that--
    (i) There is a reasonable basis to conclude that you could achieve a 
level of ACDBE participation consistent with the objectives of this part 
using different or innovative means other than those that are provided 
in subpart B or D of this part;
    (ii) Conditions at your airport are appropriate for implementing the 
proposal;
    (iii) Your proposal would prevent discrimination against any 
individual or group in access to concession opportunities or other 
benefits of the program; and
    (iv) Your proposal is consistent with applicable law and FAA program 
requirements.
    (3) The FAA Administrator has the authority to approve your 
application. If the Administrator grants your application, you may 
administer your ACDBE program as provided in your proposal, subject to 
the following conditions:
    (i) ACDBE eligibility is determined as provided in subpart C of this 
part, and ACDBE participation is counted as provided in Sec. Sec.  23.53 
through 23.55.
    (ii) Your level of ACDBE participation continues to be consistent 
with the objectives of this part;

[[Page 207]]

    (iii) There is a reasonable limitation on the duration of the your 
modified program; and
    (iv) Any other conditions the Administrator makes on the grant of 
the waiver.
    (4) The Administrator may end a program waiver at any time and 
require you to comply with this part's provisions. The Administrator may 
also extend the waiver, if he or she determines that all requirements of 
this section continue to be met. Any such extension shall be for no 
longer than period originally set for the duration of the program 
waiver.