[Federal Register Volume 86, Number 203 (Monday, October 25, 2021)]
[Notices]
[Pages 58999-59002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22627]



[[Page 58999]]

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DEPARTMENT OF TRANSPORTATION

[Docket No. DOT-OST-2021-0127]


Agency Information Collection Activities; Approval of a New 
Information Collection Request

AGENCY: Office of the Secretary (OST), Department of Transportation 
(DOT).

ACTION: Notice and request for comments.

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SUMMARY: The Department of Transportation (DOT or Department) invites 
public comments about our intention to request the Office of Management 
and Budget's (OMB) approval for an information collection for the 
Department's Airport Concession Disadvantaged Business Enterprise 
(ACDBE) program.

DATES: Written comments should be submitted by December 27, 2021.

ADDRESSES: You may submit comments identified by Docket No. DOT-OST-
2021-0127 through one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Fax: (202) 493-2251.
     Mail or Hand Delivery: Docket Management Facility, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE, West Building, 
Room W12-140, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except on Federal holidays.

FOR FURTHER INFORMATION CONTACT: Marcus England, (202) 267-0487, 
[email protected] or Nicholas Giles, (202) 267-0201, 
[email protected]/Office of Civil Rights, National Airport Civil 
Rights Policy and Compliance (ACR-4C), Federal Aviation Administration, 
600 Independence Ave. SW, Washington, DC 20591.

SUPPLEMENTARY INFORMATION: The DOT has the important responsibility of 
ensuring that firms competing for concession opportunities are not 
disadvantaged by unlawful discrimination. The DOT's most important tool 
for meeting this requirement has been its ACDBE program, which is 
regulated by 49 CFR part 23 (ACDBE regulation) and is mandated by 49 
U.S.C. 47107(e), originally enacted in 1987 and amended in 1992.
    The information collections described in this notice are necessary 
to maintain successful implementation of the ACDBE program. The 
collections help ensure recipients that receive Federal financial 
assistance from the Airport Improvement Program (AIP) of the Federal 
Aviation Administration (FAA) do not discriminate in the provision of 
opportunities for disadvantaged business enterprises in airport 
concessions.
    We are required to publish this notice in the Federal Register by 
the Paperwork Reduction Act of 1995, Public Law 104-13 (PRA).
    To assist in estimating the potential paperwork burden of these 
collections, the Department reached out to a subset of the 396 primary 
airports who are subject to the ACDBE program requirements to gain a 
general understanding of the associated costs and how much time they 
spend each year responding to these collections.
    To help commenters provide information that will better allow the 
Department to include the appropriate paperwork burden within this 
collection, we offer the following clarifications: A ``collection of 
information,'' is defined as the obtaining, causing to be obtained, 
soliciting, or requiring the disclosure to an agency, third parties or 
the public of information by or for an agency by means of identical 
questions posed to, or identical reporting, recordkeeping, or 
disclosure requirements imposed on, ten or more persons. 5 CFR part 
1320. The activities that constitute the ``burden'' associated with a 
collection are defined in 5 CFR part 1320 as the total time, effort, or 
financial resources expended by persons to generate, maintain, retain, 
or disclose or provide information to or for a Federal agency. In 
addition, as stated in 5 CFR part 1320, recordkeeping requirement means 
a requirement imposed by or for an agency on persons to maintain 
specified records, including a requirement to: (1) Retain such records; 
(2) notify third parties, the Federal Government, or the public of the 
existence of such records; (3) disclose such records to third parties, 
the Federal Government, or the public; or (4) report to third parties, 
the Federal Government, or the public regarding such records.
    For purposes of this 60-day notice, we have included the burden 
estimates we received from the small number of stakeholders we 
contacted. To ensure that estimates contain burdens associated with 
aspects of the program that constitute paperwork burdens as defined by 
the PRA, the Department requests that commenters who provide burden 
estimates for aspects of the program identified below be as specific as 
possible, including what amount of time each task takes and what, if 
any, additional costs beyond labor costs (e.g., copying, mailing, 
storage, or other technology costs) are associated with each aspect of 
the collection.
    OMB Control Number: N/A.
    Title: Airport Concession Disadvantaged Business Enterprise (ACDBE) 
Program Requirements.
    Form Numbers: N/A.
    Type of Review: Initial Approval of Information Collection.

1. Submission of ACDBE Program to the FAA

    Section 23.21 requires recipients to submit an ACDBE program to the 
FAA for approval. The FAA evaluates submitted ACDBE programs to 
determine whether they include all the provisions and measures required 
by the regulation. Timely submission and FAA approval of a recipient's 
ACDBE program are conditions of eligibility for FAA financial 
assistance.
    Paragraph (d) of Sec.  23.21 requires recipients that make any 
significant changes to their ACDBE programs to provide an amended 
program to the FAA for approval before implementing the changes.
    The FAA received total annual burden hours from eight recipients, 
two of each hub size (nonhub, small, medium and large), ranging from 19 
to 40 hours. The average burden hour per recipient response, based on 
the information received from the eight recipients, is 28 hours. The 
FAA calculated the total annual cost burden by multiplying the total 
annual burden hours (56 hours x 396 respondents) against the fully 
loaded state government wage rate taken from Bureau of Labor and 
Statistics' (BLS's) estimate of median wages for employees in 
``Management Occupations'' (SOC 11-000) working in ``State Government, 
excluding schools and hospitals'' (NAICS 999200) at https://www.bls.gov/oes/current/naics4_999200.htm#11-0000. The wage rate 
($44.66/hour) is multiplied by 1.62 to get a fully loaded wage rate 
(compensation rate) of $72.35 to account for the cost of employer 
provided benefits.
    Respondents: Recipients of FAA grants for Airport Development.
    Number of Respondents: 396.
    Frequency: Once, unless the recipient makes a significant change to 
its ACDBE program and is required to submit an amended program to the 
FAA for approval.
    Number of Responses: 396.
    Total Annual Burden Hours: 11,088 hours
    Total Annual Burden Costs: $802,216.80.

[[Page 59000]]

2. Annual Report on ACBE Participation

    Section 23.27 requires recipients with approved ACDBE programs to 
submit a ``Uniform Report of ACDBE Participation'' (Uniform Report). 
The Uniform Report is developed electronically and submitted annually 
to the FAA. The Uniform Report assists the FAA in conducting program 
oversight of recipients' ACDBE programs, identifying trends or problem 
areas in the program, and ensuring that the ACDBE program is achieving 
its goal of encouraging ACDBE participation in concession-related 
opportunities.
    The reporting requirements of the Uniform Report include the 
following information:
     Overall percentage goals of ACDBE participation and their 
race-conscious (RC) and race-neutral (RN) components;
     new and continuing car rental concession opportunities and 
activity under the ACDBE program during the reporting period;
     total concession gross revenues for concessionaires (prime 
and sub) and purchases of goods and services at the airport;
     number of lease agreements, contracts, etc., in effect or 
taking place during the reporting period in each participation category 
for all concessionaires and purchases of goods and services;
     total gross revenues in each participation category for 
ACDBEs;
     total gross revenues attributable to race-conscious and 
race-neutral measures, respectively;
     overall car rental percentage goal and the race-conscious 
(RC) and race-neutral (RN) components of it; and
     The following information for each ACDBE firm 
participating in the ACDBE program during the period: (1) Firm name; 
(2) Type of business; (3) Beginning and expiration dates of the 
agreement, including options to renew; (4) Dates that material 
amendments have been or will be made to the agreement (if known); and 
(5) Estimated gross receipts for the firm during the reporting period.
    The FAA received total annual burden hours from eight recipients, 
two of each hub size (nonhub, small, medium and large), ranging from 15 
to 96 hours. The average burden hour per response. based on the 
information received from the eight recipients, is 56 hours. The FAA 
estimated the total annual cost burden by multiplying the total annual 
burden hours (56 hours x 396 respondents = 22,176) against the fully 
loaded state government wage rate of $72.35. The state government wage 
rate was taken from Bureau of Labor and Statistics' (BLS's) estimate of 
median wages for employees in ``Management Occupations'' (SOC 11-000) 
working in ``State Government, excluding schools and hospitals'' (NAICS 
999200) at https://www.bls.gov/oes/current/naics4_999200.htm#11-0000. 
The wage rate ($44.66/hour) is multiplied by 1.62 to get a fully loaded 
wage rate (compensation rate) of $72.35 to account for the cost of 
employer provided benefits.
    Respondents: Recipients of FAA grants for Airport Development.
    Number of Respondents: 396.
    Frequency: Once per year.
    Number of Responses: 396.
    Total Annual Burden Hours: 22,176 hours.
    Total Annual Burden Costs: $1,604,433.60.

3. Monitoring and Compliance Procedures

    Section 23.29 requires recipients to implement appropriate 
mechanisms to ensure that all ACDBE program participants comply with 
the regulation's requirements. Recipients must include in their ACDBE 
programs specific provisions to be inserted into concession agreements 
and management contracts setting forth the enforcement mechanisms and 
other means the recipient uses to ensure compliance. These provisions 
must include a written certification that recipients reviewed records 
of all contracts, leases, joint venture agreements, or other 
concession-related agreements, and monitored the work on-site at their 
airport for this purpose. If the FAA conducts a compliance review or 
investigation, it verifies whether the recipient has the written 
certifications and has monitored the work performed by ACDBEs; 
recipients do not otherwise submit the information. Recipients collect 
the information during on-site reviews of concession workplaces to 
determine whether ACDBEs are actually performing the work for which 
credit is being claimed.
    The FAA received total annual burden hours from eight recipients, 
two of each hub size (nonhub, small, medium and large), ranging from 0 
to 416 hours. The annual burden hours for this requirement can be zero 
if a recipient does not have any concessions or any ACDBE participation 
to monitor. The average burden hour per response, based on the 
information received from the eight recipients, is 153 hours. The FAA 
seeks comment on whether the estimates, and in particular the higher 
estimates, were based on the substantive monitoring requirement rather 
than the paperwork-specific requirements.
    The FAA estimated the total annual cost burden by multiplying the 
total annual burden hours (153 hours x 396 respondents = 60,588) 
against the fully loaded state government wage rate of $72.35. The 
state government wage rate was taken from Bureau of Labor and 
Statistics' (BLS's) estimate of median wages for employees in 
``Management Occupations'' (SOC 11-000) working in ``State Government, 
excluding schools and hospitals'' (NAICS 999200) at https://www.bls.gov/oes/current/naics4_999200.htm#11-0000. The wage rate 
($44.66/hour) is multiplied by 1.62 to get a fully loaded wage rate 
(compensation rate) of $72.35 to account for the cost of employer 
provided benefits. DOT may adjust this estimate based on input received 
regarding the basis for the estimates previously provided, as well as 
any additional comments and information received.
    Respondents: Recipients of FAA grants for Airport Development.
    Number of Respondents: 396.
    Frequency: 36 times per year (3 times per month).
    Number of Responses: 14,256.
    Total Annual Burden Hours: 2,181,168 hours;
    Total Annual Burden Costs: $157,807,504.80.

4. Requirements for Submitting Overall Goal Information to the FAA

    Congress carefully considered and concluded that race-neutral means 
alone are insufficient to remedy the effects of discrimination in 
airport concession opportunities. To meet Constitutional strict 
scrutiny requirements, ACDBE programs' race-conscious means must be 
narrowly tailored. Section 23.45 requires that recipients set and 
submit to the FAA an overall goal for ACDBE participation in concession 
opportunities every three years. The goal represents the ACDBE 
participation that would be expected in the relevant market area given 
the availability of ACDBEs. Paragraph (d)(5) of Sec.  23.51 requires 
recipients to include with their overall goal submission a description 
of the methodology they used to establish the goal. Recipients must 
also include a projection of the portions of the overall goal that they 
expect to meet through race-neutral and race-conscious means, 
respectively, and the basis for the projection. Paragraph (d) of Sec.  
23.25 requires recipients to maximize the use of race-neutral measures, 
obtaining as much as possible of the ACDBE participation needed to meet 
overall goals through such measures.

[[Page 59001]]

    The FAA received total annual burden hours from eight recipients, 
two of each hub size (nonhub, small, medium and large), ranging from 1 
to 120 hours. The average burden hour per response, based on the 
information received from the eight recipients, is 53 hours. The FAA 
estimated the total annual cost burden by multiplying the total annual 
burden hours (53 hours x 396 respondents = 20,988) against the fully 
loaded state government wage rate of $72.35. The state government wage 
rate was taken from Bureau of Labor and Statistics' (BLS's) estimate of 
median wages for employees in ``Management Occupations'' (SOC 11-000) 
working in ``State Government, excluding schools and hospitals'' (NAICS 
999200) at https://www.bls.gov/oes/current/naics4_999200.htm#11-0000. 
The wage rate ($44.66/hour) is multiplied by 1.62 to get a fully loaded 
wage rate (compensation rate) of $72.35 to account for the cost of 
employer provided benefits.
    Respondents: Recipients of FAA grants for Airport Development.
    Number of Respondents: 396.
    Frequency: Annually.
    Number of Responses: 396.
    Total Annual Burden Hours: 20,988 hours.
    Total Annual Burden Costs: $1,518,481.80.

5. Requirements Relating to Shortfalls in Meeting Overall ACDBE Goals

    Section 23.57 requires recipients that do not meet their overall 
goal for ACDBE awards and commitments shown on their Uniform Report of 
ACDBE Participation (found in appendix A to part 23) at the end of any 
fiscal year to take the following steps to be regarded by the 
Department as implementing their ACDBE programs in good faith: (1) 
Analyze in detail the reasons for the difference between the overall 
goal and the recipient's awards and commitments in that fiscal year; 
and (2) establish specific steps and milestones to correct the problems 
the recipient identified in its analysis and to enable the recipient to 
meet fully its goal for the new fiscal year. CORE 30 airports or other 
airports designated by the FAA must submit by December 31st of each 
year, the analysis and corrective actions developed under Sec.  23.57 
to the FAA for approval and must retain the analysis and corrective 
actions for three years. Recipients that are not a CORE 30 airports 
must retain the analysis and corrective actions in their records for 
three years and make them available to the FAA, on request, for their 
review.
    The FAA estimates 130 recipients are subject to developing, and 
either retaining or submitting, the shortfall analyses and corrective 
actions required under Sec.  23.57 each year. This estimate is derived 
from the number of airport recipients whose ACDBE awards and 
commitments shown on their Uniform Report of ACDBE Participation were 
less than their overall goals for fiscal year 2020. The FAA received 
total annual burden hours from two recipients, one small hub airport 
and another medium hub size airport, ranging from 2 to 40 hours. The 
average burden hour per response, based on the information received 
from the two recipients, is 21 hours. The FAA estimated the total 
annual cost burden by multiplying the total annual burden hours (21 
hours x 130 respondents = 2,730) against the fully loaded state 
government wage rate of $72.35. The state government wage rate was 
taken from Bureau of Labor and Statistics' (BLS's) estimate of median 
wages for employees in ``Management Occupations'' (SOC 11-000) working 
in ``State Government, excluding schools and hospitals'' (NAICS 999200) 
at https://www.bls.gov/oes/current/naics4_999200.htm#11-0000. The wage 
rate ($44.66/hour) is multiplied by 1.62 to get a fully loaded wage 
rate (compensation rate) of $72.35 to account for the cost of employer 
provided benefits.
    Respondents: Recipients of FAA grants for Airport Development.
    Number of Respondents: 130.
    Frequency: Annually depending on if the awards and commitments 
shown on a recipient's Uniform Report of ACDBE Participation at the end 
of any fiscal year are less than the overall goal applicable to that 
fiscal year.
    Number of Responses: 130.
    Total Annual Burden Hours: 2,730 hours.
    Total Annual Burden Costs: $197,515.50.

6. Requirements Relating to Approval of LTE Agreements

    Paragraph (a) of Sec.  23.75 prohibits recipients from entering 
into ``long-term, exclusive agreements'' (LTE agreements) for 
concessions without prior FAA approval, based on very limited 
conditions which are outlined in the regulation. This general 
prohibition is designed to limit the situation where an entire category 
of business activity is not subject to competition for an extended 
period of time through the use of an LTE agreement. Paragraph (c) of 
Sec.  23.75 requires recipients to submit to the FAA various documents 
and information to obtain approval from the FAA of a long-term 
exclusive (LTE) agreement. The required information includes the 
following items:
     A description of the special local circumstances that 
warrant a long-term, exclusive agreement;
     A copy of the draft and final leasing and subleasing or 
other agreements with specific provisions;
     Assurances that any ACDBE participant will be in an 
acceptable form, such as a sublease, joint venture, or partnership;
     Documentation that ACDBE participants are properly 
certified;
     A description of the type of business or businesses to be 
operated e.g., location, storage and delivery space, ``back-of-the-
house facilities'' such as kitchens, window display space, advertising 
space, and other amenities that will increase the ACDBE's chance to 
succeed;
     Information on the investment required on the part of the 
ACDBE and any unusual management or financial arrangements between the 
prime concessionaire and ACDBE; and
     Information on the estimated gross receipts and net profit 
to be earned by the ACDBE.
    The collection of information under this section is necessary for 
FAA to carry out oversight responsibilities in determining whether 
special local circumstances warrant approval of an LTE agreement.
    The FAA estimates seven recipients are required to submit LTE 
agreements to FAA for approval under Sec.  23.75(c) each year. This 
estimate is derived from the total number of recipients from whom the 
FAA received LTE agreements in fiscal year 2020.
    The FAA received total annual burden hours from eight recipients, 
two of each hub size (nonhub, small, medium and large), ranging from 0 
to 20 hours. The average burden hour per response, based on the 
information received from the eight recipients, is 6.25 hours. The FAA 
estimated the total annual cost burden by multiplying the total annual 
burden hours (6.25 hours x 7 respondents = 43.75) against the fully 
loaded state government wage rate of $72.35. The state government wage 
rate was taken from Bureau of Labor and Statistics' (BLS's) estimate of 
median wages for employees in ``Management Occupations'' (SOC 11-000) 
working in ``State Government, excluding schools and hospitals'' (NAICS 
999200) at https://www.bls.gov/oes/current/naics4_999200.htm#11-0000. 
The wage rate ($44.66/hour) is multiplied by 1.62 to get a fully loaded 
wage rate (compensation rate) of $72.35 to account for the cost of 
employer provided benefits.

[[Page 59002]]

    Respondents: Recipients of FAA grants for Airport Development.
    Number of Respondents: 7.
    Frequency: Annually depending on the number of leases and/or 
contracts with prime concessionaires that are long-term exclusive 
agreements and require FAA approval.
    Number of Responses: 7.
    Total Annual Burden Hours: 43.75 hours.
    Total Annual Burden Costs: $3,165.31.
    Authority: The Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 
35, as amended; and 49 CFR 1.48.

    Signed in Washington, DC, on October 13, 2021.
Irene B. Marion,
Director, Departmental Office of Civil Rights, Department of 
Transportation.
[FR Doc. 2021-22627 Filed 10-22-21; 8:45 am]
BILLING CODE 4910-9X-P