[Federal Register Volume 87, Number 53 (Friday, March 18, 2022)]
[Notices]
[Pages 15484-15487]
[FR Doc No: 2022-05760]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. DOT-OST-2022-0020]

Agency Information Collection Activities: Requests for Comments;
Clearance of a New Information Collection(s): Airport Concession
Disadvantaged Business Enterprise (ACDBE) Program Requirements

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

ACTION: Notice and request for comments.

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SUMMARY: In accordance with the Paperwork Reduction Act of 1995, FAA
invites public comments about our intention to request the Office of

Management and Budget (OMB) approval for a new information collection.
The Federal Register Notice with a 60-day comment period soliciting
comments on the following collection of information was published on
October 25, 2021. The deadline for submission of public comments
expired on December 27, 2021. No public comments were provided. The
Department of Transportation (DOT or Department) further 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. 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originally enacted in 1987 and amended in 1992.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, as it helps 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).

DATES: Written comments should be submitted by April 18, 2022.

ADDRESSES: You may submit comments [identified by Docket No. DOT-OST-
2022-0020 through one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     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,<PHONE_NUMBER>,
[email protected], Nicholas Giles,<PHONE_NUMBER>,
[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, or Aarathi Haig, (202-
366-5990), [email protected]/Departmental Office of Civil Rights
(OST-S-33), U. S. Department of Transportation, 1200 New Jersey Ave.
SE, Washington, DC 20590.

SUPPLEMENTARY INFORMATION:
    Public Comments Invited: You are asked to comment on any aspect of
this information collection, including the accuracy of the estimated
burden. The agency will summarize and/or include your comments in the
request for OMB's clearance of this information collection.
    In preparing this notice, the Department identified various aspects
of the ACDBE program that have existed as requirements for a long
period of time, several decades in some cases, that include information
collections that have not been appropriately accounted for in the
current collection. To assist in estimating the potential paperwork
burden of these collections, the Department reached out to a small
number of stakeholders to obtain estimates of 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.'' Importantly, this burden is not necessarily the same as the
entire regulatory burden for a program or an aspect of a program. For
example, if a regulation requires an inspection and the completion of a
form documenting the inspection, the full regulatory burden would
likely include both actions, while the paperwork burden would only
include the time and other resources needed to complete the form.
    In addition, the Department believes certain recordkeeping
requirements have not been adequately accounted for in the current
collection. 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.'' Thus,
recordkeeping requirements can attach to records that are not
necessarily covered by the PRA itself if, as in the ACDBE program, a
requirement exists to maintain a complete case file. In that case, as
the case file itself is not standardized, it would not be considered an
information collection and the burden associated with developing the
file would not be a paperwork burden. However, the requirement to keep
that case file and, upon request, submit it to the Department, would be
part of the paperwork burden.
    For purposes of this 30-day notice, we have included the burden
estimates we received from the small number of stakeholders we
contacted. As noted above, the Department is concerned that at least
several of these estimates contain burdens associated with aspects of
the program that are not paperwork burdens. To the extent feasible, 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 Existing 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 section 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 total annual cost burden was calculated based on the
average of two recipients (small and medium hub size) responses ranging
from $1,600-$15,000.
    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: 11,088 hours and $8,300 per respondent.

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 collected electronically by the FAA from
recipients annually and 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 total annual cost burden was calculated based on the
average of two recipients (small and medium hub size) responses ranging
from $5,000-$10,000.
    Respondents: Recipients of FAA grants for Airport Development.
    Number of Respondents: 396.
    Frequency: Once per year.
    Number of Responses: 396.
    Total Annual Burden: 22,176 hours and $7,500 per respondent.

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, as the Operating Administration,
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 total annual cost burden was calculated based on the
average of two recipients (small and medium hub size) responses ranging
from $20,000-$25,000.
    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: 60,588 hours and $22,500 per respondent.

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
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. Subparagraph (d)(5) of section 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
section 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 0
to 120 hours. The total annual cost burden was calculated based on the
average of two recipients (small and medium hub size) responses ranging
from $5,000-$10,000.
    Respondents: Recipients of FAA grants for Airport Development.
    Number of Respondents: 396.
    Frequency: Annually.
    Number of Responses: 396.
    Total Annual Burden: 20,988 hours and $7,500 per respondent.

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 in order 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, within 90 days of the end of the fiscal year, the
analysis and corrective actions developed under section 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 airport 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 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 total annual cost burden was calculated based on the
average of these two recipients (small and medium hub size) responses,
ranging from $80-$2,800.
    Respondents: Recipients of FAA grants for Airport Development.
    Number of Respondents: 90.
    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: 90.
    Total Annual Burden: 1,890 hours and $1,440 per respondent.

6. Requirements Relating to Approval of Long-Term, Exclusive (LTE)
Agreements.

    Paragraph (a) of section 23.75 prohibits recipients from entering
into ``long-term, exclusive agreements'' (LTE) 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 section 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 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 total annual cost burden was calculated based on the
average of two recipients (small and medium hub size) responses ranging
from $2,000-$5,000.
    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: 2,376 hours and $3,500 per respondent.
    Authority: The Paperwork Reduction Act of 1995, 44 U.S.C. chapter
35, as amended; and 49 CFR 1:48.

    Issued in Washington, DC, on March 15, 2022.
Marc D. Pentino,
Associate Director, Disadvantaged Business Enterprise Programs
Division, Departmental Office of Civil Rights, Office of the Secretary,
U.S. Department of Transportation.
[FR Doc. 2022-05760 Filed 3-17-22; 8:45 am]
BILLING CODE 4910-13-P