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.

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, marcus.england@faa.gov or Nicholas Giles, (202) 267-0201, nicholas.giles@faa.gov /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been its ACDBE program, which is regulated by 49 CFR part 23 (ACDBE regulation) and is mandated by 49 U.S.C. 47107(e), originally enacted in 1987 and amended in 1992.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 § 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 × 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.

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 × 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 × 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 § 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 § 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.

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 × 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 § 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 § 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 × 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 § 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 § 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 § 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 × 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.

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.