DOT 49 CFR PART 23-2010 PARTICIPATION OF DISADVANTAGED BUSINESS ENTERPRISE IN AIRPORT CONCESSIONS.pdf

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1、210 49 CFR Subtitle A (10110 Edition) Pt. 23 PART 23PARTICIPATION OF DIS-ADVANTAGED BUSINESS ENTER-PRISE IN AIRPORT CONCES-SIONS Subpart AGeneral Sec. 23.1 What are the objectives of this part? 23.3 What do the terms used in this part mean? 23.5 To whom does this part apply? 23.7 Program reviews. 23

2、.9 What are the nondiscrimination and as-surance requirements of this part for re-cipients? 23.11 What compliance and enforcement provisions are used under this part? 23.13 How does the Department issue guid-ance, interpretations, exemptions, and waivers pertaining to this part? Subpart BACDBE progr

3、ams 23.21 Who must submit an ACDBE program to FAA, and when? 23.23 What administrative provisions must be in a recipients ACDBE program? 23.25 What measures must recipients in-clude in their ACDBE programs to ensure nondiscriminatory participation of ACDBEs in concessions? 23.27 What information doe

4、s a recipient have to retain and report about imple-mentation of its ACDBE program? 23.29 What monitoring and compliance pro-cedures must recipients follow? Subpart CCertification of ACDBEs 23.31 What certification standards and pro-cedures do recipients use to certify ACDBEs? 23.33 What size standa

5、rds do recipients use to determine the eligibility of ACDBEs? 23.35 What is the personal net worth stand-ard for disadvantaged owners of ACDBEs? 23.37 Are firms certified under 49 CFR part 26 eligible to participate as ACDBEs? 23.39 What other certification requirements apply in the case of ACDBEs?

6、Subpart DGoals, Good Faith Efforts, and Counting 23.41 What is the basic overall goal require-ment for recipients? 23.43 What are the consultation require-ments in the development of recipients overall goals? 23.45 What are the requirements for submit-ting overall goal information to the FAA? 23.47

7、What is the base for a recipients goals for concessions other than car rentals? 23.49 What is the base for a recipients goals for car rentals? 23.51 How are a recipients overall goals ex-pressed and calculated? 23.53 How do car rental companies count ACDBE participation toward their goals? 23.55 How

8、 do recipients count ACDBE par-ticipation toward goals for items other than car rentals? 23.57 What happens if a recipient falls short of meeting its overall goals? 23.59 What is the role of the statutory 10 percent goal in the ACDBE program? 23.61 Can recipients use quotas or set-asides as part of

9、their their ACDBE programs? Subpart EOther Provisions 23.71 Does a recipient have to change exist-ing concession agreements? 23.73 What requirements apply to privately- owned or leased terminal buildings? 23.75 Can recipients enter into long-term, exclusive agreements with conces-sionaires? 23.77 Do

10、es this part preempt local require-ments? 23.79 Does this part permit recipients to use local geographic preferences? APPENDIX A TO PART 23UNIFORM REPORT OF ACDBE PARTICIPATION AUTHORITY: 49 U.S.C. 47107; 42 U.S.C. 2000d; 49 U.S.C. 322; Executive Order 12138. SOURCE: 70 FR 14508, Mar. 22, 2005, unle

11、ss otherwise noted. Subpart AGeneral 23.1 What are the objectives of this part? This part seeks to achieve several ob-jectives: (a) To ensure nondiscrimination in the award and administration of oppor-tunities for concessions by airports re-ceiving DOT financial assistance; (b) To create a level pla

12、ying field on which ACDBEs can compete fairly for opportunities for concessions; (c) To ensure that the Departments ACDBE program is narrowly tailored in accordance with applicable law; (d) To ensure that only firms that fully meet this parts eligibility stand-ards are permitted to participate as AC

13、DBEs; (e) To help remove barriers to the participation of ACDBEs in opportuni-ties for concessions at airports receiv-ing DOT financial assistance; and VerDate Mar2010 10:00 Dec 22, 2010 Jkt 220212 PO 00000 Frm 00220 Fmt 8010 Sfmt 8010 Y:SGML220212.XXX 220212jdjones on DSK8KYBLC1PROD with CFRProvide

14、d by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-211 Office of the Secretary of Transportation 23.3 (f) To provide appropriate flexibility to airports receiving DOT financial as-sistance in establishing and providing opportunities for ACDBEs. 23.3 What do th

15、e terms used in this part mean? Administrator means the Adminis-trator of the Federal Aviation Admin-istration (FAA). Affiliation has the same meaning the term has in the Small Business Admin-istration (SBA) regulations, 13 CFR part 121, except that the provisions of SBA regulations concerning affil

16、iation in the context of joint ventures (13 CFR 121.103(f) do not apply to this part. (1) Except as otherwise provided in 13 CFR part 121, concerns are affiliates of each other when, either directly or in-directly: (i) One concern controls or has the power to control the other; or (ii) A third party

17、 or parties controls or has the power to control both; or (iii) An identity of interest between or among parties exists such that af-filiation may be found. (2) In determining whether affiliation exists, it is necessary to consider all appropriate factors, including common ownership, common manageme

18、nt, and contractual relationships. Affiliates must be considered together in deter-mining whether a concern meets small business size criteria and the statutory cap on the participation of firms in the ACDBE program. Airport Concession Disadvantaged Busi-ness Enterprise (ACDBE) means a con-cession t

19、hat is a for-profit small busi-ness concern (1) That is at least 51 percent owned by one or more individuals who are both socially and economically dis-advantaged or, in the case of a corpora-tion, in which 51 percent of the stock is owned by one or more such individuals; and (2) Whose management an

20、d daily business operations are controlled by one or more of the socially and eco-nomically disadvantaged individuals who own it. Alaska Native Corporation (ANC) means any Regional Corporation, Vil-lage Corporation, Urban Corporation, or Group Corporation organized under the laws of the State of Ala

21、ska in ac-cordance with the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) Car dealership means an establish-ment primarily engaged in the retail sale of new and/or used automobiles. Car dealerships frequently maintain re-pair departments and carry stocks of replacement parts, tires, b

22、atteries, and automotive accessories. Such estab-lishments also frequently sell pickup trucks and vans at retail. In the stand-ard industrial classification system, car dealerships are categorized in NAICS code 441110. Concession means one or more of the types of for-profit businesses listed in para

23、graph (1) or (2) of this definition: (1) A business, located on an airport subject to this part, that is engaged in the sale of consumer goods or services to the public under an agreement with the recipient, another concessionaire, or the owner or lessee of a terminal, if other than the recipient. (

24、2) A business conducting one or more of the following covered activi-ties, even if it does not maintain an of-fice, store, or other business location on an airport subject to this part, as long as the activities take place on the airport: Management contracts and subcontracts, a web-based or other e

25、lectronic business in a terminal or which passengers can access at the ter-minal, an advertising business that provides advertising displays or mes-sages to the public on the airport, or a business that provides goods and serv-ices to concessionaires. Example to paragraph (2): A supplier of goods or

26、 a management contractor main-tains its office or primary place of business off the airport. However the supplier pro-vides goods to a retail establishment in the airport; or the management contractor oper-ates the parking facility on the airport. These businesses are considered concessions for purp

27、oses of this part. (3) For purposes of this subpart, a business is not considered to be lo-cated on the airport solely because it picks up and/or delivers customers under a permit, license, or other agree-ment. For example, providers of taxi, limousine, car rental, or hotel services are not consider

28、ed to be located on the airport just because they send shuttles VerDate Mar2010 10:00 Dec 22, 2010 Jkt 220212 PO 00000 Frm 00221 Fmt 8010 Sfmt 8010 Y:SGML220212.XXX 220212jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,

29、-,-212 49 CFR Subtitle A (10110 Edition) 23.3 onto airport grounds to pick up pas-sengers or drop them off. A business is considered to be located on the air-port, however, if it has an on-airport facility. Such facilities include in the case of a taxi operator, a dispatcher; in the case of a limous

30、ine, a booth selling tickets to the public; in the case of a car rental company, a counter at which its services are sold to the public or a ready return facility; and in the case of a hotel operator, a hotel located any-where on airport property. (4) Any business meeting the defini-tion of concessi

31、on is covered by this subpart, regardless of the name given to the agreement with the recipient, concessionaire, or airport terminal owner or lessee. A concession may be operated under various types of agree-ments, including but not limited to the following: (i) Leases. (ii) Subleases. (iii) Permits

32、. (iv) Contracts or subcontracts. (v) Other instruments or arrange-ments. (5) The conduct of an aeronautical activity is not considered a concession for purposes of this subpart. Aero-nautical activities include scheduled and non-scheduled air carriers, air taxis, air charters, and air couriers, in

33、their normal passenger or freight car-rying capacities; fixed base operators; flight schools; recreational service pro-viders (e.g., sky-diving, parachute- jumping, flying guides); and air tour services. (6) Other examples of entities that do not meet the definition of a concession include flight ki

34、tchens and in-flight ca-terers servicing air carriers, govern-ment agencies, industrial plants, farm leases, individuals leasing hangar space, custodial and security contracts, telephone and electric service to the airport facility, holding companies, and skycap services under contract with an air c

35、arrier or airport. Concessionaire means a firm that owns and controls a concession or a portion of a concession. Department (DOT) means the U.S. De-partment of Transportation, including the Office of the Secretary and the Federal Aviation Administration (FAA). Direct ownership arrangement means a jo

36、int venture, partnership, sublease, li-censee, franchise, or other arrange-ment in which a firm owns and con-trols a concession. Good faith efforts means efforts to achieve an ACDBE goal or other re-quirement of this part that, by their scope, intensity, and appropriateness to the objective, can rea

37、sonably be ex-pected to meet the program require-ment. Immediate family member means fa-ther, mother, husband, wife, son, daughter, brother, sister, grandmother, grandfather, grandson, granddaughter, mother-in-law, father-in-law, brother- in-law, sister-in-law, or registered do-mestic partner. India

38、n tribe means any Indian tribe, band, nation, or other organized group or community of Indians, including any ANC, which is recognized as eligi-ble for the special programs and serv-ices provided by the United States to Indians because of their status as Indi-ans, or is recognized as such by the Sta

39、te in which the tribe, band, nation, group, or community resides. See defi-nition of tribally-owned concern in this section. Joint venture means an association of an ACDBE firm and one or more other firms to carry out a single, for-profit business enterprise, for which the par-ties combine their pro

40、perty, capital, ef-forts, skills and knowledge, and in which the ACDBE is responsible for a distinct, clearly defined portion of the work of the contract and whose shares in the capital contribution, control, management, risks, and profits of the joint venture are commensurate with its ownership int

41、erest. Joint venture entities are not certified as ACDBEs. Large hub primary airport means a commercial service airport that has a number of passenger boardings equal to at least one percent of all passenger boardings in the United States. Management contract or subcontract means an agreement with a

42、 recipient or another management contractor under which a firm directs or operates one or more business activities, the as-sets of which are owned, leased, or oth-erwise controlled by the recipient. The managing agent generally receives, as VerDate Mar2010 10:00 Dec 22, 2010 Jkt 220212 PO 00000 Frm

43、00222 Fmt 8010 Sfmt 8010 Y:SGML220212.XXX 220212jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-213 Office of the Secretary of Transportation 23.3 compensation, a flat fee or a percent-age of the gross receipts or pr

44、ofit from the business activity. For purposes of this subpart, the business activity op-erated or directed by the managing agent must be other than an aero-nautical activity, be located at an air-port subject to this subpart, and be en-gaged in the sale of consumer goods or provision of services to

45、the public. Material amendment means a signifi-cant change to the basic rights or obli-gations of the parties to a concession agreement. Examples of material amendments include an extension to the term not provided for in the origi-nal agreement or a substantial increase in the scope of the concessi

46、on privi-lege. Examples of nonmaterial amend-ments include a change in the name of the concessionaire or a change to the payment due dates. Medium hub primary airport means a commercial service airport that has a number of passenger boardings equal to at least 0.25 percent of all passenger boardings

47、 in the United States but less than one percent of such passenger boardings. Native Hawaiian means any indi-vidual whose ancestors were natives, prior to 1778, of the area that now com-prises the State of Hawaii. Native Hawaiian Organization means any community service organization serving Native Ha

48、waiians in the State of Hawaii that is a not-for-profit orga-nization chartered by the State of Ha-waii, and is controlled by Native Ha-waiians Noncompliance means that a recipient has not correctly implemented the re-quirements of this part. Nonhub primary airport means a com-mercial service airpor

49、t that has more than 10,000 passenger boardings each year but less than 0.05 percent of all passenger boardings in the United States. Part 26 means 49 CFR part 26, the De-partment of Transportations disadvan-taged business enterprise regulation for DOT-assisted contracts. Personal net worth means the net value of the assets of an individual re-maining after total liabilities are de-ducted. An individuals personal net worth does not include the following: Th