Agency Request for Approval of a New Information Collection(s): Disadvantaged Business Enterprise (DBE) Program Requirements, 51439-51444 [2021-19940]
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Federal Register / Vol. 86, No. 176 / Wednesday, September 15, 2021 / Notices
all laws under which such actions were
taken, including but not limited to:
1. NEPA;
2. Council on Environmental Quality
regulations (1978); 2
3. Fixing America’s Surface
Transportation Act (FAST Act);
4. Department of Transportation Act
of 1966, Section 4(f);
5. Land and Water Conservation Fund
(LWCF) Act of 1965, Section 6(f);
6. Clean Air Act Amendments of
1990;
7. Clean Water Act of 1977 and 1987;
8. Endangered Species Act of 1973;
9. Migratory Bird Treaty Act;
10. National Historic Preservation Act
of 1966, as amended;
11. Executive Order 11990, Protection
of Wetlands;
12. Executive Order 11988,
Floodplain Management;
13. Executive Order 12898, Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations;
14. Executive Order 13112, Invasive
Species.
Issued in Washington, DC.
Jamie P. Rennert,
Director, Office of Infrastructure Investment.
[FR Doc. 2021–19914 Filed 9–14–21; 8:45 am]
BILLING CODE 4910–06–P
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
[Docket No. DOT–OST–2021–0104]
Agency Request for Approval of a New
Information Collection(s):
Disadvantaged Business Enterprise
(DBE) Program Requirements
Office of the Secretary,
Department of Transportation.
ACTION: Notice and request for
comments.
AGENCY:
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 Disadvantaged
Business Enterprise (DBE) program. The
information collected is necessary to
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SUMMARY:
2 The Council on Environmental Quality (CEQ)
issued new regulations on July 14, 2020, effective
September 14, 2020, updating the NEPA
implementing procedures at 40 CFR parts 1500
through 1508. However, this project initiated NEPA
before the effective date and relies on the CEQ
regulations as they existed prior to September 14,
2020. All subsequent citations to the CEQ
regulations in the ROD and Final EIS refer to the
1978 regulations, consistent with 40 CFR 1506.13
(2020) and the preamble at 85 FR 43340.
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maintain successful implementation of
the DBE program, as it helps ensure that
state and local recipients of DOT funds
carry out the program’s mission of
providing a level playing field for small
businesses owned and controlled by
socially and economically
disadvantaged individuals. We are
required to publish this notice in the
Federal Register by the Paperwork
Reduction Act of 1995 (PRA).
DATES: Written comments should be
submitted by October 15, 2021.
ADDRESSES: You may submit comments
[identified by Docket No. DOT–OST–
2021–0104] 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:
Marc D. Pentino, (202)366–6968,
marc.pentino@dot.gov or Aarathi Haig,
aarathi.haig@dot.gov/Departmental
Office of Civil Rights, Office of the
Secretary, U.S. Department of
Transportation, 1200 New Jersey
Avenue SE, Washington, DC 20590.
SUPPLEMENTARY INFORMATION: To assist
in estimating the potential paperwork
burden of these collections, the
Department reached out to a small
number of stakeholders to gain a general
understanding of how much time they
spend each year responding to these
collections. However, the stakeholder
responses varied so significantly that we
are concerned the responses blur lines
between what aspects of the program are
specifically information collections
versus more general requirements of the
program. 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, 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
1320.3(c)(1). The activities that
constitute the ‘‘burden’’ associated with
a collection are defined in 5 CFR
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51439
1320.3(b)(1) 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 1320(m), ‘‘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
DBE 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 well as
from the seven comments we received
from the 60-day notice published in the
Federal Register on June 15, 2021. 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.
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Federal Register / Vol. 86, No. 176 / Wednesday, September 15, 2021 / Notices
OMB Control Number: N/A.
Title: Disadvantaged Business
Enterprise (DBE) Program Requirements.
Form Numbers: N/A.
Type of Review: Initial Approval of
Existing Information Collection.
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1. Maintain Bidders Lists
Section 26.11 and Appendix B of the
DBE regulation require recipients to
maintain a bidders list. The purpose of
the list is to provide recipients the most
accurate data possible about the
universe of DBE and non-DBE
contractors and subcontractors who seek
to work on federally-assisted contracts.
Recipients use the bidders lists to more
accurately determine the availability of
DBE and non-DBE firms and to measure
the relative availability of ready,
willing, and able DBEs when setting
their overall goals under § 26.45. The
data on a bidders list includes each
firm’s name, address, DBE status, age,
and approximate annual gross receipts.
The annual burden hours we received
from six stakeholder responses ranged
from 3–915 hours. The total estimated
annual cost burden we received from
four stakeholder responses ranged from
$360–$35,000. Although the Department
acknowledges the wide range of
recipients that must comply with this
requirement, it seems unlikely that a
fulltime employee dedicates half of his
or her time each year to this task, as
these lists are only updated three times
per year for each recipient. Thus, the
Department believes that the total
annual burden per recipient is likely
towards the lower end of the estimates
we received.
Respondents: State and local
recipients of DOT funds.
Number of Respondents: 1,198 (592
Federal Aviation Administration (FAA)
recipients, 53 Federal Highway
Administration (FHWA) recipients, 553
Federal Transit Administration (FTA)
recipients).
Frequency: 3 times per year, although
recipients have significant flexibility
under § 26.11 to determine how often
they update their bidders lists.
Number of Responses: 3,594.
Total Annual Burden: 636 hours and
$30,000.
2. Maintaining DBE Directories
Section 26.81(g) requires recipients to
maintain an electronic DBE directory.
Section 26.31 mandates that each
directory listing include the firm’s
address, phone number, and the types of
work the firm has been certified to
perform as a DBE, using the most
specific North American Industry
Classification System (NAICS) code
available to describe each type of work.
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The primary purpose of the directory is
to show the results of the certification
process, i.e., all firms that the recipient
has certified. Prime contractors use the
information to find potential DBE
subcontractors.
The total annual burden hours we
received from the five stakeholder
responses ranged from 10–1,300 hours.
The total annual cost burden we
received from four stakeholder
responses ranged from $240–$79,800.
As with the above, the Department is
concerned that the high estimate
includes burden beyond the paperwork
requirement of updating and
maintaining the directory, though the
Department believes the lower value of
10 hours may be insufficient for our
larger stakeholders.
The General Contractors Association
of New York (GCANY) commented that
a requirement for recipients to include
a detailed business description of each
DBE in the directories would help prime
contractors to conduct more targeted
and meaningful outreach to DBEs.
GCANY did not give examples of what
additional details should be included
beyond those that recipients already
provide. The trade association American
Road & Transportation Builders
(ARTBA) commented that DBE
directories in their current form should
be improved, but did not provide
specific suggestions.
Respondents: State and local
recipients of DOT funds that perform
DBE certification.
Number of Respondents: 132.
Frequency: Monthly, i.e., 12 times
each year.
Number of Responses: 1,584.
Total Annual Burden: 4,500 hours
and $426,000.
3. Monitoring the Performance of DBE
Program Participants
Section 26.37 requires recipients to
implement monitoring mechanisms to
ensure that all DBE program
participants comply with the
regulation’s requirements. There are two
required mechanisms: (1) Written
certification that recipients have
reviewed contracting records and
monitored work sites in their state for
this purpose, and (2) a running tally of
actual DBE attainments. If a DOT
Operating Administration (OA)
conducts a compliance review or
investigation, it checks to see if the
recipient has the written certifications
and tallies; recipients do not otherwise
submit the information. Recipients
collect the information so they can
confirm at project sites that the DBE to
whom the work was committed is in
fact performing the work.
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The total estimated annual burden
hours we received from the six
stakeholder responses ranged from 45–
2000 hours. The total annual cost
burden was calculated based on the
average of four stakeholder responses
ranging from $10,000–$80,000. The
Department believes that it is likely that
the stakeholders who provided the
higher numbers were basing their
response on the substantive monitoring
requirement rather than the paperwork
specific requirements.
In response to the Department’s 60day Federal Register notice, the
Associated General Contractors of Texas
(AGCT) commented that there is much
fluctuation in the amount of time it
takes to report DBE payments, with a
range of 36–2,500 annual hours to
gather and report the necessary data.
AGCT attributes the difficulties
involved to flaws in the Texas DOT’s
DBE management software.
Respondents: State and local
recipients of DOT funds.
Number of Respondents: 1,198 (592
FAA recipients, 53 FHWA recipients,
553 FTA recipients).
Frequency: 36 times each year (3
times per month).
Number of Responses: 43,128.
Total Annual Burden: 28,224 hours
and $42,250.
4. Addressing Overconcentration of
DBEs in Certain Types of Work
Section 26.33 contemplates a
situation in which DBEs in a certain
work type are so prevalent that they
unduly burden the ability of non-DBE
firms to participate in those work types.
If a recipient determines that
overconcentration of DBEs exists in
certain types of work, the recipient must
submit to the appropriate OA the
reasons for the determination and the
measures devised to address it. The
recipient must review and analyze
actual data concerning an
overconcentration allegation to
determine if it supports a finding of
overconcentration. The OA have never
received submittals of
overconcentration determinations from
recipients. ARTBA commented that
overconcentration of DBEs in the
trucking industry is well known and
that better data is needed to inform the
Department, recipients, and others to
develop new DBE firms within
industries where they are needed.
ARTBA did not specify what type(s) of
data might be helpful; thus, the
Department cannot estimate what the
burden impact would be of collecting
additional data.
Respondents: State and local
recipients of DOT funds.
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Number of Respondents: 1,198 (592
FAA recipients, 53 FHWA recipients,
553 FTA recipients).
Frequency: Zero.
Number of Responses: Zero.
Total Annual Burden: Zero.
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5. Setting Overall Goals for DBE
Participation in DOT-Assisted
Contracts
Congress carefully considered and
concluded that race-neutral means alone
insufficient to remedy the effects of
discrimination in DOT-assisted
contracting. Thus, § 26.45 mandates
that, in three-year intervals, recipients
set and submit to DOT an overall goal
for DBE participation in DOT-assisted
contracts based on the availability of
DBE firms compared to all firms in each
recipient’s DOT-assisted contracting
market. Recipients must include with
their overall goal submission a
description of the methodology they
used to establish the goal and a
projection of the portions of the overall
goal that they expect to meet through
race-neutral and race-conscious means.
The total annual burden hours below
were calculated based on the average of
six stakeholder responses ranging from
16–500 hours. The total annual cost
burden was calculated based on the
average of four stakeholder responses
ranging from $2,300–$50,000. The
Department notes that the paperworkspecific burden does not apply to all the
work that goes into the goal setting
process, but rather only to those aspects
of that work that is related to the
submission of goals.
Respondents: State and local
recipients of DOT funds.
Number of Respondents: 1,198 (592
FAA recipients, 53 FHWA recipients,
553 FTA recipients).
Frequency: Triennially.
Number of Responses: 1,198.
Total Annual Burden: 47 hours and
$5,400.
6. Analyzing Discrepancies Between
Uniform Report Data and Recipients’
Overall Goals
Section 26.47(c) mandates that if the
awards and commitments shown on a
recipient’s Uniform Report at the end of
any fiscal year are less than the overall
goal applicable to that fiscal year, the
recipient must, in order to be regarded
by the Department as implementing the
DBE program in good faith, (1) analyze
in detail the reasons for the difference
between the overall goal and awards
and commitments in that fiscal year,
and (2) establish specific steps and
milestones to correct the problems the
recipient identified in the analysis and
to enable the recipient to meet fully the
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goal for the new fiscal year. If the
recipient is a state highway agency, one
of the 50 largest transit authorities as
determined by the FTA, or an
Operational Evolution Partnership Plan
airport or other airport designated by
the FAA, the recipient must submit,
within 90 days of the end of the fiscal
year, an analysis and corrective action
plan to the appropriate OA for approval.
A transit authority or airport not
meeting the criteria of § 26.47(c)(3)(i)
must retain analysis and corrective
actions in its records for three years and
make it available to the FTA or FAA on
request.
The total annual burden hours we
received from seven stakeholder
responses ranged from 3–2,000 hours.
The total annual cost burden was
calculated based on the average of five
stakeholder responses ranging from
$450–$80,000. The Department is
concerned that the higher numbers
account for aspects of the program
beyond the narrow collection in this
requirement.
Respondents: State and local
recipients of DOT funds.
Number of Respondents: 450.
Frequency: Annually or triennially
depending on which OA provided the
funds.
Number of Responses: 450.
Total Annual Burden: 650 hours and
$36,650 per respondent.
7. Requiring Transit Vehicle
Manufacturers (TVMs) To Comply With
the DBE Regulation’s Goal Setting
Requirements
Under § 26.49, FTA funding
recipients must require that each TVM,
as a condition of being authorized to bid
or propose on FTA-assisted transit
vehicle procurements, certify that it has
complied with the regulation’s goal
setting requirements. TVMs must
establish and submit for the FTA’s
approval an annual overall percentage
goal that is narrowly tailored and
specific to its market area. The FTA
reviews the goal setting methodologies
to ensure that they are developed
pursuant to regulatory requirements and
the Department’s official guidance. In
addition to submitting an annual
percentage goal, FTA recipients must
submit, within 30 days of making an
award, the name of the successful
bidder and the total dollar value of the
contract in the manner prescribed in the
grant agreement. Once collected, the
FTA analyzes the information for
oversight purposes. For example, when
the FTA conducts triennial and DBEspecific reviews, FTA contractors check
the TVM Award Report data to make
sure that the information on file with
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51441
the recipients is accurately reflected on
the report.
The total annual burden hours for
FTA recipients were calculated based
on the average of three stakeholder
responses ranging from 1–40 hours. The
total annual cost burden for FTA
recipients was calculated based on the
average of two stakeholder responses
ranging from $60–$4,000. The total
annual burden hours and cost for TVMs
is the response from one stakeholder.
The Department believes that these
responses are, generally, consistent with
its understanding of the paperwork
burden associated with this
requirement.
Respondents: FTA recipients and
TVMs.
Number of Respondents: 391 (328
FTA recipients; 63 TVMs).
Frequency: FTA recipients each
submit contract award information once
each time they award a contract to a
TVM, i.e., cumulatively 1,255 times
each year. The 63 TVMs each annually
submit one overall percentage goal to
the FTA, i.e., cumulative total of 63
annual submissions.
Number of Responses: 1,255 (1,192
FTA recipient responses and 63 TVM
responses).
Total Annual Burden: 12,020 hours
and $18,880 (11,920 hours and $17,880
for FTA recipients to submit contract
award information; 100 hours and
$1,000 for each TVM to submit one
overall percentage goal submission).
8. Projecting Which Portions of Overall
Goals of DBE Participation Will Be Met
Through Race-Neutral Means and
Which Portions Will Be Met Through
Race-Conscious Means
Section 26.51(c) states that each time
a recipient submits an overall goal for
review by the concerned OA, the
recipient must also submit a projection
of the portion of the goal that the
recipient expects to meet through race
neutral means and the basis for that
projection. The projection is subject to
approval by the concerned OA in
conjunction with its review of the
recipient’s overall goal. Recipients use
the information to determine what
combination of race conscious and race
neutral efforts they should undertake to
meet their overall goal.
The total annual burden hours we
received from six stakeholder responses
ranged from 3–1,387 hours. The total
annual cost burden from four
stakeholder responses ranged from
$360–$100,000. The Department
believes that the higher totals include
programmatic burdens beyond this
specific collection.
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Respondents: State and local
recipients of DOT funds.
Number of Respondents: 1,198 (592
FAA recipients, 53 FHWA recipients,
553 FTA recipients).
Frequency: Triennially.
Number of Responses: 1,198.
Total Annual Burden: 171,713 hours
and $9,000.
9. Documenting and Submitting
Evidence of Having Made ‘‘Good Faith
Efforts’’ To Secure DBE Participation in
DOT-Assisted Contracts
Section 26.53(b)(2) and Appendix A
state that in solicitations for DOTassisted contracts for which a contract
goal has been established, a recipient
must require all bidders or offerors to
submit the names and addresses of the
DBE firms that will participate in the
contract, a description of the work that
each DBE will perform, the dollar
amount of the participation of each DBE
firm participating, written
documentation of the bidder/offeror’s
commitment to use a DBE subcontractor
whose participation it submits to meet
a contract goal, and written
confirmation from each listed DBE firm
that it is participating in the contract in
the kind and amount of work provided
in the prime contractor’s commitment. If
the contract goal is not met, the
recipient must require all bidders or
offerors to submit evidence of their
‘‘good faith efforts’’ to achieve DBE
participation on the contract. The
documentation of good faith efforts
must include copies of each DBE and
non-DBE subcontractor quote submitted
to the bidder when a non-DBE
subcontractor was selected over a DBE.
The total annual burden hours below
were calculated based on the average of
five recipient responses ranging from 2–
192 hours. The total annual cost burden
was calculated based on the average of
four stakeholder responses ranging from
$250–$7,300.
The Department acknowledges that
the requirement of submitting ‘‘good
faith efforts’’ documentation imposes a
paperwork burden on prime contractors
as well. It has not been feasible for the
Department to survey prime contractors
to calculate their burden. We request
that prime contractors comment on this
collection and provide hour and cost
burden estimates that are as specific as
possible, especially what amount of
time it takes to prepare and submit
‘‘good faith efforts’’ documentation and
any additional costs beyond labor costs
(e.g., copying, mailing, storage, or other
technology costs). In response to the
Department’s 60-day notice, GCANY
commented that some of its members
have reported spending approximately
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$10,000–$15,000 per year on newspaper
advertisements that did not result in
DBE interest or participation. GCANY
also responded that on average it takes
four days for one full-time employee to
call 300 DBEs, explaining that one
person can call 15–20 DBEs in one hour,
it takes 15 hours to contact 300 DBEs for
the first round of calls, and then an
additional 10 hours for the second
round of calls. Prime contractor
Milestone Contractors LP commented
that its annual average burdens for
documenting and submitting evidence
of having made good faith efforts is 168
hours and $17,000. Contractor Jonathan
Nolting shared that good faith efforts
documentation takes approximately 1–2
days of multiple employees compiling,
editing, reviewing, and submitting the
required information. ARTBA
commented that that its average annual
burden related to good faith efforts is
168 hours and $17,000, based bidding
on 24 contracts per year.
Respondents: State and local
recipients of DOT funds and prime
contractors.
Number of Respondents: 1,198 (592
FAA recipients, 53 FHWA recipients,
553 FTA recipients).
Frequency: 72 times each year (6
times per month) for state and local
recipients of DOT funds.
Number of Responses: 86,256 (state
and local recipients of DOT funds).
Total Annual Burden: 4,680 hours
and $359,400 for state and local
recipients of DOT funds; approximately
96.5 hours and $15,000 for prime
contractors (based on the comments
described above).
10. Drafting Unified Certification
Program (UCP) Agreements
The DBE program regulation requires
all recipients and sponsors
implementing DBE and Airport
Concession DBE (ACDBE) programs to
establish a UCP in their respective
jurisdictions. In January 2020, DOCR
evaluated the UCP agreements of the 50
states, the District of Columbia, the
Northern Mariana Islands, and Puerto
Rico. DOCR found that over 20 UCP
agreements have errors, have not been
updated to reflect changes to the DBE
regulation made in 2011 and 2014, and
contain significant changes that might
not have been approved by the
Department.
One of the Department’s concerns is
that the UCP agreements and procedures
are posted online and included in
employee training materials, but contain
information that misleads certified and
applicant firms, as well as the recipients
that created the agreements. For
instance, some agreements contain
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outdated standards (e.g., listing
$750,000 instead of the current $1.32
million personal net worth limit), and/
or inaccurate procedures (e.g., reference
to nonexistent regulatory requirements,
such as DBE certification expiration,
and impermissibly requiring interstate
certification applicants to participate in
telephone interviews).
The total annual burden hours for
UCPs to update their program
agreements were calculated based on
two stakeholder responses ranging from
2–192 hours. The total annual cost
burden was calculated based on the
response of one stakeholder.
Respondents: Unified Certification
Programs.
Number of Respondents: 53.
Frequency: The Department proposes
that this occur every four years. The
Department or OAs may, as part of
compliance activities, recommend or
request the recipient and sponsor to
make changes more frequently if
necessary.
Number of Responses: 53.
Total Annual Burden: 50 hours and
$3,700 per respondent.
11. Evaluating the DBE Certification
Eligibility of Applicant Firms
Recipients must take various steps in
determining an applicant’s eligibility,
such as performing an on-site visit to
the firm’s principal place of business.
Recipients often write a report
documenting the visit and maintain a
copy of it. They send a copy to the
Department if a firm found ineligible
files an appeal.
The total annual burden hours below
were calculated based on the average of
three stakeholder responses ranging
from 240–2000 hours. The total annual
cost burden was calculated based on
one stakeholder response of $80,000.
Respondents: Recipients that perform
DBE certification.
Number of Respondents: 132.
Frequency: 40 per respondent.
Number of Responses: 5,280.
Total Annual Burden: 44,000 hours
and $3.2 million.
12. Maintaining Copies of Written
Denial Letters Sent to Applicant Firms
and Sending Copies to DOT Upon
Request
Under § 26.86(a), when a recipient
denies a certification application of a
firm that is not currently certified by the
UCP of which the recipient is a member,
the recipient must provide the firm a
written denial letter explaining the
reasons for the decision, specifically
referencing the evidence in the record
that supports each reason for the denial.
The recipient must maintain a copy of
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the denial letter. If the denied firm
appeals to DOT, the recipient must send
a copy of the letter to DOT. If the firm
requests the documents and other
information on which the denial was
based, the recipient must provide them.
The total annual burden hours below
were calculated based on the average of
three recipient responses within a
narrow range. The total annual cost
burden was calculated based on one
stakeholder response of $7,000. This is
an instance in which the Department
believes that recipients included hours
and costs beyond those attributable to
the paperwork burden. As denial letters
are not standardized, they are not
considered an information collection
and the burden associated with writing
them is not a paperwork burden. The
only paperwork burdens are for
recipients to send electronic copies of
the letters to firms and to the
Department, and maintain a copy of the
letters. Given the relative simplicity of
those tasks, it seems unlikely that they
require 3,360 hours and $210,000.
Respondents: Recipients that perform
DBE certification.
Number of Respondents: 132.
Frequency: 2.5 each month.
Number of Responses: 3,960 per year.
Total Annual Burden: 3,360 hours
and $210,000.
13. Removing the Eligibility of a DBE
Firm
Section 26.87 describes the process
for a recipient to remove a firm’s
certification. If a recipient determines
there is reasonable cause to believe that
a certified firm is no longer eligible for
DBE certification, the recipient must
give the firm a written notice of its
intent to decertify the firm. The notice
must clearly describe the reasons for the
proposed determination and the reasons
for it, with specific references to the
evidence in the record on which each
reason is based. The recipient must offer
the firm, in writing, an opportunity for
an informal hearing at which the firm
may respond to the reasons for the
proposal to remove its eligibility. The
recipient must maintain a verbatim
record/transcript of the hearing. If a
recipient reaches a final decision to
decertify the firm, the recipient must
provide the firm written notice of the
decision and the reasons for it,
including specific references to the
evidence in the record that supports
each reason for the decision. The notice
must inform the firm of the
consequences of the final decision and
explain the process for filing an appeal
with the Department. If the firm appeals
to the Department, the recipient must
provide the Department with a copy of
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17:08 Sep 14, 2021
Jkt 253001
the transcript, and on request, to the
firm.
The information collected during the
decertification process is used in
multiple ways. The decisionmaker
appointed by the recipient uses the
information in the notice of intent to
decertify and any evidence presented
during or after the hearing to make a
final decision on whether the firm
should be decertified. The firm uses the
information in the notice of intent to
decertify to determine what evidence or
arguments it might want to submit at the
informal hearing. The firm uses the
information in the final decision, in
part, to decide whether it wishes to file
an appeal with the Department. If the
firm files an appeal, the Department
uses the information to determine
whether substantial evidence supports
the recipient’s decision to remove the
firm’s certification eligibility.
The total annual burden hours are
based on the average of three
stakeholder responses ranging from 60–
180 hours. The total annual cost is
based on one stakeholder response of
$4,100.
Respondents: Unified Certification
Programs.
Number of Respondents: 38.
Frequency: 53 each year.
Number of Responses: 2,014.
Total Annual Burden: 6,095 hours
and $217,300.
14. Mailing and Maintaining Copies of
Summary Suspension Notices
Under § 26.88 when a recipient
summarily suspends a firm’s DBE
certification, the recipient must
immediately notify the firm of the
suspension by certified mail, return
receipt requested, to the last known
address of the owner(s) of the firm. If
the owner(s) responds to the notice with
information demonstrating that the firm
remains eligible, the recipient must
respond in writing (within 30 days of
receiving the information) and explain
how it intends to proceed.
The total annual burden hours below
were calculated based on the average of
three stakeholder responses ranging
from 12–180 hours. The total annual
cost burden was calculated based on
one response from one stakeholder of
$7,600. This is another instance in
which the Department believes that
recipients included hours and costs
beyond those attributable to the
paperwork burden. Given that, the
hours and cost estimates the Department
received are likely too high. Summary
suspension notices are not standardized
and thus not considered an information
collection. The burden associated with
writing them is not a paperwork burden.
PO 00000
Frm 00106
Fmt 4703
Sfmt 4703
51443
The only paperwork burdens are for
recipients to send the notices by
certified mail to firms and maintain an
electronic copy.
Respondents: Recipients that perform
DBE certification.
Number of Respondents: 132.
Frequency: 5 times each year.
Number of Responses: 660.
Total Annual Burden: 420 hours and
$38,000.
15. Sending the Department a Full
Administrative Record When the
Department Gives Notice That a Denied
or Decertified Firm Appeals to the
Department and Maintaining a Copy of
the Record
Under § 26.89(d), recipients must
comply with the Department’s request
to timely (within 20 days of the request)
provide a full administrative record
when the Department gives notice that
a denied or decertified firm has filed an
appeal with the Department.
The total annual burden hours below
were calculated based on the average of
three stakeholder responses ranging
from 2–200 hours. The total annual cost
burden was calculated based on one
response from one stakeholder response
of $7,600.
Respondents: Recipients that perform
DBE certification that have denied or
decertified firms that appeal to the
Department.
Number of Respondents: 50.
Frequency: 3 times each year.
Number of Responses: 150.
Total Annual Burden: 12,600 hours
and $7,600.
16. Providing a Copy of Application
Materials to an Additional State in
Which a Firm Certified in Another
State Applies to Another State for
Certification (Interstate Certification)
Under § 26.85(c), when a firm
currently certified in its home state
(state A) applies to another state (state
B) for DBE certification, state B is
permitted to require the firm to submit
a complete copy of all the materials the
firm submitted to its home state/state A
for initial certification. State B reviews
the information to determine whether
there is ‘‘good cause’’ (a term
specifically described in the interstate
certification rule) to believe that state
A’s certification is not erroneous or
should not apply in its state. The
interstate certification rule describes the
limited circumstances under which
state B could validly make such a
determination.
Respondents: DBE firms applying for
interstate certification.
Number of Respondents: 68.
Frequency: Once.
E:\FR\FM\15SEN1.SGM
15SEN1
51444
Federal Register / Vol. 86, No. 176 / Wednesday, September 15, 2021 / Notices
Number of Responses: 68.
Total Annual Burden: 20 hours and
$2,000.
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
khammond on DSKJM1Z7X2PROD with NOTICES
17. Writing and Submitting Narratives
of Social and Economic Disadvantage
When Applying for DBE Certification
Based on an Individualized Showing of
Disadvantage
The DBE program is intended to be as
inclusive as possible while still
remaining narrowly tailored.
Individuals who are not members of
groups whose members are presumed
socially and economically
disadvantaged may still qualify for DBE
certification. Appendix E of the
regulation states that to demonstrate
their eligibility, these individuals must
submit a narrative describing the
individual’s experiences of social
disadvantage and a separate narrative in
which the individual describes why the
individual is economically
disadvantaged. This information
collection is critical for ensuring that
only fully qualified firms receive DBE
certification.
Respondents: DBE certification
applicants whose owners are not
presumed socially and economically
disadvantaged under the DBE
regulation.
Number of Respondents: 264.
Frequency: Once.
Number of Responses: 264.
Total Annual Burden: 90 hours and
$8,000.
Public Comments Invited: You are
asked to comment on any aspect of this
information collection, including (a)
Whether the proposed collection of
information is necessary for the
Department’s performance; (b) the
accuracy of the estimated burden; (c)
ways for the Department to enhance the
quality, utility and clarity of the
information collection; and (d) ways
that the burden could be minimized
without reducing the quality of the
collected information. The agency will
summarize and/or include your
comments in the request for OMB’s
clearance of this information collection.
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 September 8,
2021.
Irene B. Marion,
Director, Departmental Office of Civil Rights,
U.S. Department of Transportation.
[FR Doc. 2021–19940 Filed 9–14–21; 8:45 am]
BILLING CODE 4910–9X–P
VerDate Sep<11>2014
17:08 Sep 14, 2021
Jkt 253001
[Docket No. DOT–OST–2021–0105]
Agency Request for Renewal of a
Previously Approved Information
Collection(s): Disadvantaged Business
Enterprise (DBE) Program Collections
Office of the Secretary,
Department of Transportation.
ACTION: Notice and request for
comments.
AGENCY:
The Department of
Transportation (DOT) invites public
comments about our intention to request
the Office of Management and Budget
(OMB) approval to renew information
collections associated with DOT’s
Disadvantaged Business Enterprise
(DBE) and Airport Concessions DBE
(ACDBE) program. These collections
are: Uniform Report of DBE Awards or
Commitments and Payments, the
Uniform Certification Application
(UCA), Annual Affidavit of No Change,
DOT Personal Net Worth Form, and
Reporting Requirements for Percentages
of DBEs in Various Categories.
DATES: Written comments should be
submitted by October 15, 2021.
ADDRESSES: You may submit comments
[identified by Docket No. DOT–OST–
2021–0105] through one of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
• Fax: 1–202–493–2251.
• 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:
Marc Pentino, (202)366–6968,
marc.pentino@dot.gov, or Aarathi Haig,
aarathi.haig@dot.gov/Departmental
Office of Civil Rights, Office of the
Secretary, U.S. Department of
Transportation, 1200 New Jersey
Avenue SE, Washington, DC, 20590
SUPPLEMENTARY INFORMATION: All five
collections were previously approved
under one OMB Control Number to
allow DOT to more efficiently
administer the DBE program. The
information to be collected is necessary
because it helps to ensure that State and
local recipients that let federally funded
contracts carry out their mandated
responsibility to provide a level playing
field for small businesses owned and
controlled by socially and economically
SUMMARY:
PO 00000
Frm 00107
Fmt 4703
Sfmt 4703
disadvantaged individuals. We are
required to publish this notice in the
Federal Register by the Paperwork
Reduction Act of 1995, 44 U.S.C.
Chapter 35, as amended (Pub. L. 104–
13).
OMB Control Number: 2105–0510.
Title: Disadvantaged Business
Enterprise Program Collections.
Form Numbers: Not applicable.
Type of Review: Renewal of an
information collection.
Background: DOT’s DBE program is
mandated by statute, including Section
1101(b) of the Fixing America’s Surface
Transportation Act (FAST Act) (Pub. L.
114–94) and 49 U.S.C. 47113. The
Department’s final regulations
implementing these statutes are 49 CFR
parts 23 and 26. The program is
implemented by recipients of DOT
financial assistance (State highway
agencies, transit authorities, and
airports).
The ‘‘Uniform Report of DBE Awards
or Commitments and Payments’’ is
necessary for the Department to be able
to carry out its oversight
responsibilities. It implements statutory
reporting requirements and 49 CFR
26.11 and 26.47.
The ‘‘Uniform Certification
Application Form’’ is required under 49
CFR 26.83(c)(2) and is necessary for
determining whether a particular firm
qualifies for DBE certification.
The ‘‘Annual Affidavit of No Change’’
is mandated under 49 CFR 26.83(j) and
is necessary to ensure the integrity of
the DBE program that requires DBEs
annually state that they remain eligible
for the program.
The ‘‘Personal Net Worth Form’’ is
necessary to implement the requirement
found in 49 CFR 26.67(a)(2) that a firm
applying for DBE status must certify that
the personal net worth of the
disadvantaged owner(s) on whom the
firm relies for certification eligibility
does not exceed the current limit of
$1.32 million.
The ‘‘Percentages of DBEs in Various
Categories’’ collection is necessary to
implement a long-standing statutory
requirement calling on States to report
annually, a list of small businesses
certified as DBEs that are owned and
controlled by socially and economically
disadvantaged individuals, most
recently included at section
1101(b)(4)(A) and (B) of the FAST Act.
Submission of this information will also
satisfy 49 CFR 26.11(e).
The information collections support
one of DOT’s strategic objectives of
mission efficiency and support. The
collection also helps ensure that State
and local recipients that let federally
funded contracts carry out their
E:\FR\FM\15SEN1.SGM
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]]>Agencies
[Federal Register Volume 86, Number 176 (Wednesday, September 15, 2021)]
[Notices]
[Pages 51439-51444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19940]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
[Docket No. DOT-OST-2021-0104]
Agency Request for Approval of a New Information Collection(s):
Disadvantaged Business Enterprise (DBE) Program Requirements
AGENCY: Office of the Secretary, Department of Transportation.
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 Disadvantaged Business Enterprise (DBE) program. The
information collected is necessary to maintain successful
implementation of the DBE program, as it helps ensure that state and
local recipients of DOT funds carry out the program's mission of
providing a level playing field for small businesses owned and
controlled by socially and economically disadvantaged individuals. We
are required to publish this notice in the Federal Register by the
Paperwork Reduction Act of 1995 (PRA).
DATES: Written comments should be submitted by October 15, 2021.
ADDRESSES: You may submit comments [identified by Docket No. DOT-OST-
2021-0104] 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: Marc D. Pentino, (202)366-6968,
[email protected] or Aarathi Haig, [email protected]/Departmental
Office of Civil Rights, Office of the Secretary, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590.
SUPPLEMENTARY INFORMATION: To assist in estimating the potential
paperwork burden of these collections, the Department reached out to a
small number of stakeholders to gain a general understanding of how
much time they spend each year responding to these collections.
However, the stakeholder responses varied so significantly that we are
concerned the responses blur lines between what aspects of the program
are specifically information collections versus more general
requirements of the program. 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, 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
1320.3(c)(1). The activities that constitute the ``burden'' associated
with a collection are defined in 5 CFR 1320.3(b)(1) 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 1320(m), ``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 DBE 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 well as from the seven comments we received from the 60-
day notice published in the Federal Register on June 15, 2021. 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.
[[Page 51440]]
OMB Control Number: N/A.
Title: Disadvantaged Business Enterprise (DBE) Program
Requirements.
Form Numbers: N/A.
Type of Review: Initial Approval of Existing Information
Collection.
1. Maintain Bidders Lists
Section 26.11 and Appendix B of the DBE regulation require
recipients to maintain a bidders list. The purpose of the list is to
provide recipients the most accurate data possible about the universe
of DBE and non-DBE contractors and subcontractors who seek to work on
federally-assisted contracts. Recipients use the bidders lists to more
accurately determine the availability of DBE and non-DBE firms and to
measure the relative availability of ready, willing, and able DBEs when
setting their overall goals under Sec. 26.45. The data on a bidders
list includes each firm's name, address, DBE status, age, and
approximate annual gross receipts.
The annual burden hours we received from six stakeholder responses
ranged from 3-915 hours. The total estimated annual cost burden we
received from four stakeholder responses ranged from $360-$35,000.
Although the Department acknowledges the wide range of recipients that
must comply with this requirement, it seems unlikely that a fulltime
employee dedicates half of his or her time each year to this task, as
these lists are only updated three times per year for each recipient.
Thus, the Department believes that the total annual burden per
recipient is likely towards the lower end of the estimates we received.
Respondents: State and local recipients of DOT funds.
Number of Respondents: 1,198 (592 Federal Aviation Administration
(FAA) recipients, 53 Federal Highway Administration (FHWA) recipients,
553 Federal Transit Administration (FTA) recipients).
Frequency: 3 times per year, although recipients have significant
flexibility under Sec. 26.11 to determine how often they update their
bidders lists.
Number of Responses: 3,594.
Total Annual Burden: 636 hours and $30,000.
2. Maintaining DBE Directories
Section 26.81(g) requires recipients to maintain an electronic DBE
directory. Section 26.31 mandates that each directory listing include
the firm's address, phone number, and the types of work the firm has
been certified to perform as a DBE, using the most specific North
American Industry Classification System (NAICS) code available to
describe each type of work. The primary purpose of the directory is to
show the results of the certification process, i.e., all firms that the
recipient has certified. Prime contractors use the information to find
potential DBE subcontractors.
The total annual burden hours we received from the five stakeholder
responses ranged from 10-1,300 hours. The total annual cost burden we
received from four stakeholder responses ranged from $240-$79,800. As
with the above, the Department is concerned that the high estimate
includes burden beyond the paperwork requirement of updating and
maintaining the directory, though the Department believes the lower
value of 10 hours may be insufficient for our larger stakeholders.
The General Contractors Association of New York (GCANY) commented
that a requirement for recipients to include a detailed business
description of each DBE in the directories would help prime contractors
to conduct more targeted and meaningful outreach to DBEs. GCANY did not
give examples of what additional details should be included beyond
those that recipients already provide. The trade association American
Road & Transportation Builders (ARTBA) commented that DBE directories
in their current form should be improved, but did not provide specific
suggestions.
Respondents: State and local recipients of DOT funds that perform
DBE certification.
Number of Respondents: 132.
Frequency: Monthly, i.e., 12 times each year.
Number of Responses: 1,584.
Total Annual Burden: 4,500 hours and $426,000.
3. Monitoring the Performance of DBE Program Participants
Section 26.37 requires recipients to implement monitoring
mechanisms to ensure that all DBE program participants comply with the
regulation's requirements. There are two required mechanisms: (1)
Written certification that recipients have reviewed contracting records
and monitored work sites in their state for this purpose, and (2) a
running tally of actual DBE attainments. If a DOT Operating
Administration (OA) conducts a compliance review or investigation, it
checks to see if the recipient has the written certifications and
tallies; recipients do not otherwise submit the information. Recipients
collect the information so they can confirm at project sites that the
DBE to whom the work was committed is in fact performing the work.
The total estimated annual burden hours we received from the six
stakeholder responses ranged from 45-2000 hours. The total annual cost
burden was calculated based on the average of four stakeholder
responses ranging from $10,000-$80,000. The Department believes that it
is likely that the stakeholders who provided the higher numbers were
basing their response on the substantive monitoring requirement rather
than the paperwork specific requirements.
In response to the Department's 60-day Federal Register notice, the
Associated General Contractors of Texas (AGCT) commented that there is
much fluctuation in the amount of time it takes to report DBE payments,
with a range of 36-2,500 annual hours to gather and report the
necessary data. AGCT attributes the difficulties involved to flaws in
the Texas DOT's DBE management software.
Respondents: State and local recipients of DOT funds.
Number of Respondents: 1,198 (592 FAA recipients, 53 FHWA
recipients, 553 FTA recipients).
Frequency: 36 times each year (3 times per month).
Number of Responses: 43,128.
Total Annual Burden: 28,224 hours and $42,250.
4. Addressing Overconcentration of DBEs in Certain Types of Work
Section 26.33 contemplates a situation in which DBEs in a certain
work type are so prevalent that they unduly burden the ability of non-
DBE firms to participate in those work types. If a recipient determines
that overconcentration of DBEs exists in certain types of work, the
recipient must submit to the appropriate OA the reasons for the
determination and the measures devised to address it. The recipient
must review and analyze actual data concerning an overconcentration
allegation to determine if it supports a finding of overconcentration.
The OA have never received submittals of overconcentration
determinations from recipients. ARTBA commented that overconcentration
of DBEs in the trucking industry is well known and that better data is
needed to inform the Department, recipients, and others to develop new
DBE firms within industries where they are needed. ARTBA did not
specify what type(s) of data might be helpful; thus, the Department
cannot estimate what the burden impact would be of collecting
additional data.
Respondents: State and local recipients of DOT funds.
[[Page 51441]]
Number of Respondents: 1,198 (592 FAA recipients, 53 FHWA
recipients, 553 FTA recipients).
Frequency: Zero.
Number of Responses: Zero.
Total Annual Burden: Zero.
5. Setting Overall Goals for DBE Participation in DOT-Assisted
Contracts
Congress carefully considered and concluded that race-neutral means
alone insufficient to remedy the effects of discrimination in DOT-
assisted contracting. Thus, Sec. 26.45 mandates that, in three-year
intervals, recipients set and submit to DOT an overall goal for DBE
participation in DOT-assisted contracts based on the availability of
DBE firms compared to all firms in each recipient's DOT-assisted
contracting market. Recipients must include with their overall goal
submission a description of the methodology they used to establish the
goal and a projection of the portions of the overall goal that they
expect to meet through race-neutral and race-conscious means.
The total annual burden hours below were calculated based on the
average of six stakeholder responses ranging from 16-500 hours. The
total annual cost burden was calculated based on the average of four
stakeholder responses ranging from $2,300-$50,000. The Department notes
that the paperwork-specific burden does not apply to all the work that
goes into the goal setting process, but rather only to those aspects of
that work that is related to the submission of goals.
Respondents: State and local recipients of DOT funds.
Number of Respondents: 1,198 (592 FAA recipients, 53 FHWA
recipients, 553 FTA recipients).
Frequency: Triennially.
Number of Responses: 1,198.
Total Annual Burden: 47 hours and $5,400.
6. Analyzing Discrepancies Between Uniform Report Data and Recipients'
Overall Goals
Section 26.47(c) mandates that if the awards and commitments shown
on a recipient's Uniform Report at the end of any fiscal year are less
than the overall goal applicable to that fiscal year, the recipient
must, in order to be regarded by the Department as implementing the DBE
program in good faith, (1) analyze in detail the reasons for the
difference between the overall goal and awards and commitments in that
fiscal year, and (2) establish specific steps and milestones to correct
the problems the recipient identified in the analysis and to enable the
recipient to meet fully the goal for the new fiscal year. If the
recipient is a state highway agency, one of the 50 largest transit
authorities as determined by the FTA, or an Operational Evolution
Partnership Plan airport or other airport designated by the FAA, the
recipient must submit, within 90 days of the end of the fiscal year, an
analysis and corrective action plan to the appropriate OA for approval.
A transit authority or airport not meeting the criteria of Sec.
26.47(c)(3)(i) must retain analysis and corrective actions in its
records for three years and make it available to the FTA or FAA on
request.
The total annual burden hours we received from seven stakeholder
responses ranged from 3-2,000 hours. The total annual cost burden was
calculated based on the average of five stakeholder responses ranging
from $450-$80,000. The Department is concerned that the higher numbers
account for aspects of the program beyond the narrow collection in this
requirement.
Respondents: State and local recipients of DOT funds.
Number of Respondents: 450.
Frequency: Annually or triennially depending on which OA provided
the funds.
Number of Responses: 450.
Total Annual Burden: 650 hours and $36,650 per respondent.
7. Requiring Transit Vehicle Manufacturers (TVMs) To Comply With the
DBE Regulation's Goal Setting Requirements
Under Sec. 26.49, FTA funding recipients must require that each
TVM, as a condition of being authorized to bid or propose on FTA-
assisted transit vehicle procurements, certify that it has complied
with the regulation's goal setting requirements. TVMs must establish
and submit for the FTA's approval an annual overall percentage goal
that is narrowly tailored and specific to its market area. The FTA
reviews the goal setting methodologies to ensure that they are
developed pursuant to regulatory requirements and the Department's
official guidance. In addition to submitting an annual percentage goal,
FTA recipients must submit, within 30 days of making an award, the name
of the successful bidder and the total dollar value of the contract in
the manner prescribed in the grant agreement. Once collected, the FTA
analyzes the information for oversight purposes. For example, when the
FTA conducts triennial and DBE-specific reviews, FTA contractors check
the TVM Award Report data to make sure that the information on file
with the recipients is accurately reflected on the report.
The total annual burden hours for FTA recipients were calculated
based on the average of three stakeholder responses ranging from 1-40
hours. The total annual cost burden for FTA recipients was calculated
based on the average of two stakeholder responses ranging from $60-
$4,000. The total annual burden hours and cost for TVMs is the response
from one stakeholder. The Department believes that these responses are,
generally, consistent with its understanding of the paperwork burden
associated with this requirement.
Respondents: FTA recipients and TVMs.
Number of Respondents: 391 (328 FTA recipients; 63 TVMs).
Frequency: FTA recipients each submit contract award information
once each time they award a contract to a TVM, i.e., cumulatively 1,255
times each year. The 63 TVMs each annually submit one overall
percentage goal to the FTA, i.e., cumulative total of 63 annual
submissions.
Number of Responses: 1,255 (1,192 FTA recipient responses and 63
TVM responses).
Total Annual Burden: 12,020 hours and $18,880 (11,920 hours and
$17,880 for FTA recipients to submit contract award information; 100
hours and $1,000 for each TVM to submit one overall percentage goal
submission).
8. Projecting Which Portions of Overall Goals of DBE Participation Will
Be Met Through Race-Neutral Means and Which Portions Will Be Met
Through Race-Conscious Means
Section 26.51(c) states that each time a recipient submits an
overall goal for review by the concerned OA, the recipient must also
submit a projection of the portion of the goal that the recipient
expects to meet through race neutral means and the basis for that
projection. The projection is subject to approval by the concerned OA
in conjunction with its review of the recipient's overall goal.
Recipients use the information to determine what combination of race
conscious and race neutral efforts they should undertake to meet their
overall goal.
The total annual burden hours we received from six stakeholder
responses ranged from 3-1,387 hours. The total annual cost burden from
four stakeholder responses ranged from $360-$100,000. The Department
believes that the higher totals include programmatic burdens beyond
this specific collection.
[[Page 51442]]
Respondents: State and local recipients of DOT funds.
Number of Respondents: 1,198 (592 FAA recipients, 53 FHWA
recipients, 553 FTA recipients).
Frequency: Triennially.
Number of Responses: 1,198.
Total Annual Burden: 171,713 hours and $9,000.
9. Documenting and Submitting Evidence of Having Made ``Good Faith
Efforts'' To Secure DBE Participation in DOT-Assisted Contracts
Section 26.53(b)(2) and Appendix A state that in solicitations for
DOT-assisted contracts for which a contract goal has been established,
a recipient must require all bidders or offerors to submit the names
and addresses of the DBE firms that will participate in the contract, a
description of the work that each DBE will perform, the dollar amount
of the participation of each DBE firm participating, written
documentation of the bidder/offeror's commitment to use a DBE
subcontractor whose participation it submits to meet a contract goal,
and written confirmation from each listed DBE firm that it is
participating in the contract in the kind and amount of work provided
in the prime contractor's commitment. If the contract goal is not met,
the recipient must require all bidders or offerors to submit evidence
of their ``good faith efforts'' to achieve DBE participation on the
contract. The documentation of good faith efforts must include copies
of each DBE and non-DBE subcontractor quote submitted to the bidder
when a non-DBE subcontractor was selected over a DBE.
The total annual burden hours below were calculated based on the
average of five recipient responses ranging from 2-192 hours. The total
annual cost burden was calculated based on the average of four
stakeholder responses ranging from $250-$7,300.
The Department acknowledges that the requirement of submitting
``good faith efforts'' documentation imposes a paperwork burden on
prime contractors as well. It has not been feasible for the Department
to survey prime contractors to calculate their burden. We request that
prime contractors comment on this collection and provide hour and cost
burden estimates that are as specific as possible, especially what
amount of time it takes to prepare and submit ``good faith efforts''
documentation and any additional costs beyond labor costs (e.g.,
copying, mailing, storage, or other technology costs). In response to
the Department's 60-day notice, GCANY commented that some of its
members have reported spending approximately $10,000-$15,000 per year
on newspaper advertisements that did not result in DBE interest or
participation. GCANY also responded that on average it takes four days
for one full-time employee to call 300 DBEs, explaining that one person
can call 15-20 DBEs in one hour, it takes 15 hours to contact 300 DBEs
for the first round of calls, and then an additional 10 hours for the
second round of calls. Prime contractor Milestone Contractors LP
commented that its annual average burdens for documenting and
submitting evidence of having made good faith efforts is 168 hours and
$17,000. Contractor Jonathan Nolting shared that good faith efforts
documentation takes approximately 1-2 days of multiple employees
compiling, editing, reviewing, and submitting the required information.
ARTBA commented that that its average annual burden related to good
faith efforts is 168 hours and $17,000, based bidding on 24 contracts
per year.
Respondents: State and local recipients of DOT funds and prime
contractors.
Number of Respondents: 1,198 (592 FAA recipients, 53 FHWA
recipients, 553 FTA recipients).
Frequency: 72 times each year (6 times per month) for state and
local recipients of DOT funds.
Number of Responses: 86,256 (state and local recipients of DOT
funds).
Total Annual Burden: 4,680 hours and $359,400 for state and local
recipients of DOT funds; approximately 96.5 hours and $15,000 for prime
contractors (based on the comments described above).
10. Drafting Unified Certification Program (UCP) Agreements
The DBE program regulation requires all recipients and sponsors
implementing DBE and Airport Concession DBE (ACDBE) programs to
establish a UCP in their respective jurisdictions. In January 2020,
DOCR evaluated the UCP agreements of the 50 states, the District of
Columbia, the Northern Mariana Islands, and Puerto Rico. DOCR found
that over 20 UCP agreements have errors, have not been updated to
reflect changes to the DBE regulation made in 2011 and 2014, and
contain significant changes that might not have been approved by the
Department.
One of the Department's concerns is that the UCP agreements and
procedures are posted online and included in employee training
materials, but contain information that misleads certified and
applicant firms, as well as the recipients that created the agreements.
For instance, some agreements contain outdated standards (e.g., listing
$750,000 instead of the current $1.32 million personal net worth
limit), and/or inaccurate procedures (e.g., reference to nonexistent
regulatory requirements, such as DBE certification expiration, and
impermissibly requiring interstate certification applicants to
participate in telephone interviews).
The total annual burden hours for UCPs to update their program
agreements were calculated based on two stakeholder responses ranging
from 2-192 hours. The total annual cost burden was calculated based on
the response of one stakeholder.
Respondents: Unified Certification Programs.
Number of Respondents: 53.
Frequency: The Department proposes that this occur every four
years. The Department or OAs may, as part of compliance activities,
recommend or request the recipient and sponsor to make changes more
frequently if necessary.
Number of Responses: 53.
Total Annual Burden: 50 hours and $3,700 per respondent.
11. Evaluating the DBE Certification Eligibility of Applicant Firms
Recipients must take various steps in determining an applicant's
eligibility, such as performing an on-site visit to the firm's
principal place of business. Recipients often write a report
documenting the visit and maintain a copy of it. They send a copy to
the Department if a firm found ineligible files an appeal.
The total annual burden hours below were calculated based on the
average of three stakeholder responses ranging from 240-2000 hours. The
total annual cost burden was calculated based on one stakeholder
response of $80,000.
Respondents: Recipients that perform DBE certification.
Number of Respondents: 132.
Frequency: 40 per respondent.
Number of Responses: 5,280.
Total Annual Burden: 44,000 hours and $3.2 million.
12. Maintaining Copies of Written Denial Letters Sent to Applicant
Firms and Sending Copies to DOT Upon Request
Under Sec. 26.86(a), when a recipient denies a certification
application of a firm that is not currently certified by the UCP of
which the recipient is a member, the recipient must provide the firm a
written denial letter explaining the reasons for the decision,
specifically referencing the evidence in the record that supports each
reason for the denial. The recipient must maintain a copy of
[[Page 51443]]
the denial letter. If the denied firm appeals to DOT, the recipient
must send a copy of the letter to DOT. If the firm requests the
documents and other information on which the denial was based, the
recipient must provide them.
The total annual burden hours below were calculated based on the
average of three recipient responses within a narrow range. The total
annual cost burden was calculated based on one stakeholder response of
$7,000. This is an instance in which the Department believes that
recipients included hours and costs beyond those attributable to the
paperwork burden. As denial letters are not standardized, they are not
considered an information collection and the burden associated with
writing them is not a paperwork burden. The only paperwork burdens are
for recipients to send electronic copies of the letters to firms and to
the Department, and maintain a copy of the letters. Given the relative
simplicity of those tasks, it seems unlikely that they require 3,360
hours and $210,000.
Respondents: Recipients that perform DBE certification.
Number of Respondents: 132.
Frequency: 2.5 each month.
Number of Responses: 3,960 per year.
Total Annual Burden: 3,360 hours and $210,000.
13. Removing the Eligibility of a DBE Firm
Section 26.87 describes the process for a recipient to remove a
firm's certification. If a recipient determines there is reasonable
cause to believe that a certified firm is no longer eligible for DBE
certification, the recipient must give the firm a written notice of its
intent to decertify the firm. The notice must clearly describe the
reasons for the proposed determination and the reasons for it, with
specific references to the evidence in the record on which each reason
is based. The recipient must offer the firm, in writing, an opportunity
for an informal hearing at which the firm may respond to the reasons
for the proposal to remove its eligibility. The recipient must maintain
a verbatim record/transcript of the hearing. If a recipient reaches a
final decision to decertify the firm, the recipient must provide the
firm written notice of the decision and the reasons for it, including
specific references to the evidence in the record that supports each
reason for the decision. The notice must inform the firm of the
consequences of the final decision and explain the process for filing
an appeal with the Department. If the firm appeals to the Department,
the recipient must provide the Department with a copy of the
transcript, and on request, to the firm.
The information collected during the decertification process is
used in multiple ways. The decisionmaker appointed by the recipient
uses the information in the notice of intent to decertify and any
evidence presented during or after the hearing to make a final decision
on whether the firm should be decertified. The firm uses the
information in the notice of intent to decertify to determine what
evidence or arguments it might want to submit at the informal hearing.
The firm uses the information in the final decision, in part, to decide
whether it wishes to file an appeal with the Department. If the firm
files an appeal, the Department uses the information to determine
whether substantial evidence supports the recipient's decision to
remove the firm's certification eligibility.
The total annual burden hours are based on the average of three
stakeholder responses ranging from 60-180 hours. The total annual cost
is based on one stakeholder response of $4,100.
Respondents: Unified Certification Programs.
Number of Respondents: 38.
Frequency: 53 each year.
Number of Responses: 2,014.
Total Annual Burden: 6,095 hours and $217,300.
14. Mailing and Maintaining Copies of Summary Suspension Notices
Under Sec. 26.88 when a recipient summarily suspends a firm's DBE
certification, the recipient must immediately notify the firm of the
suspension by certified mail, return receipt requested, to the last
known address of the owner(s) of the firm. If the owner(s) responds to
the notice with information demonstrating that the firm remains
eligible, the recipient must respond in writing (within 30 days of
receiving the information) and explain how it intends to proceed.
The total annual burden hours below were calculated based on the
average of three stakeholder responses ranging from 12-180 hours. The
total annual cost burden was calculated based on one response from one
stakeholder of $7,600. This is another instance in which the Department
believes that recipients included hours and costs beyond those
attributable to the paperwork burden. Given that, the hours and cost
estimates the Department received are likely too high. Summary
suspension notices are not standardized and thus not considered an
information collection. The burden associated with writing them is not
a paperwork burden. The only paperwork burdens are for recipients to
send the notices by certified mail to firms and maintain an electronic
copy.
Respondents: Recipients that perform DBE certification.
Number of Respondents: 132.
Frequency: 5 times each year.
Number of Responses: 660.
Total Annual Burden: 420 hours and $38,000.
15. Sending the Department a Full Administrative Record When the
Department Gives Notice That a Denied or Decertified Firm Appeals to
the Department and Maintaining a Copy of the Record
Under Sec. 26.89(d), recipients must comply with the Department's
request to timely (within 20 days of the request) provide a full
administrative record when the Department gives notice that a denied or
decertified firm has filed an appeal with the Department.
The total annual burden hours below were calculated based on the
average of three stakeholder responses ranging from 2-200 hours. The
total annual cost burden was calculated based on one response from one
stakeholder response of $7,600.
Respondents: Recipients that perform DBE certification that have
denied or decertified firms that appeal to the Department.
Number of Respondents: 50.
Frequency: 3 times each year.
Number of Responses: 150.
Total Annual Burden: 12,600 hours and $7,600.
16. Providing a Copy of Application Materials to an Additional State in
Which a Firm Certified in Another State Applies to Another State for
Certification (Interstate Certification)
Under Sec. 26.85(c), when a firm currently certified in its home
state (state A) applies to another state (state B) for DBE
certification, state B is permitted to require the firm to submit a
complete copy of all the materials the firm submitted to its home
state/state A for initial certification. State B reviews the
information to determine whether there is ``good cause'' (a term
specifically described in the interstate certification rule) to believe
that state A's certification is not erroneous or should not apply in
its state. The interstate certification rule describes the limited
circumstances under which state B could validly make such a
determination.
Respondents: DBE firms applying for interstate certification.
Number of Respondents: 68.
Frequency: Once.
[[Page 51444]]
Number of Responses: 68.
Total Annual Burden: 20 hours and $2,000.
17. Writing and Submitting Narratives of Social and Economic
Disadvantage When Applying for DBE Certification Based on an
Individualized Showing of Disadvantage
The DBE program is intended to be as inclusive as possible while
still remaining narrowly tailored. Individuals who are not members of
groups whose members are presumed socially and economically
disadvantaged may still qualify for DBE certification. Appendix E of
the regulation states that to demonstrate their eligibility, these
individuals must submit a narrative describing the individual's
experiences of social disadvantage and a separate narrative in which
the individual describes why the individual is economically
disadvantaged. This information collection is critical for ensuring
that only fully qualified firms receive DBE certification.
Respondents: DBE certification applicants whose owners are not
presumed socially and economically disadvantaged under the DBE
regulation.
Number of Respondents: 264.
Frequency: Once.
Number of Responses: 264.
Total Annual Burden: 90 hours and $8,000.
Public Comments Invited: You are asked to comment on any aspect of
this information collection, including (a) Whether the proposed
collection of information is necessary for the Department's
performance; (b) the accuracy of the estimated burden; (c) ways for the
Department to enhance the quality, utility and clarity of the
information collection; and (d) ways that the burden could be minimized
without reducing the quality of the collected information. The agency
will summarize and/or include your comments in the request for OMB's
clearance of this information collection.
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 September 8, 2021.
Irene B. Marion,
Director, Departmental Office of Civil Rights, U.S. Department of
Transportation.
[FR Doc. 2021-19940 Filed 9-14-21; 8:45 am]
BILLING CODE 4910-9X-P
