Thursday,

July
24,
2003
Part
III
Environmental
Protection
Agency
40
CFR
Part
30
et
al.
Participation
by
Disadvantaged
Business
Enterprises
in
Procurement
Under
Environmental
Protection
Agency
(
EPA)
Financial
Assistance
Agreements;
Proposed
Rule
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/
Vol.
68,
No.
142
/
Thursday,
July
24,
2003
/
Proposed
Rules
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Parts
30,
31,
33,
35,
and
40
[
Docket
ID
NO.
OA
 
2002
 
0001;
FRL
 
7528
 
1]

RIN
2020
 
AA39
Participation
by
Disadvantaged
Business
Enterprises
in
Procurement
Under
Environmental
Protection
Agency
(
EPA)
Financial
Assistance
Agreements
AGENCY:
Environmental
Protection
Agency.
ACTION:
Notice
of
proposed
rulemaking.

SUMMARY:
EPA
is
proposing
to
revise
its
Minority
Business
Enterprise
(
MBE)
and
Women's
Business
Enterprise
(
WBE)
Program
and
rename
it
as
EPA's
Disadvantaged
Business
Enterprise
(
DBE)
Program.
EPA
is
proposing
to
delete
existing
MBE
and
WBE
specific
provisions
in
regulations
for
Grants
and
Agreements
With
Institutions
of
Higher
Education,
Hospitals,
and
Other
Non­
Profit
Organizations,
Uniform
Administrative
Requirements
for
Grants
and
Cooperative
Agreements
to
State
and
Local
Governments,
State
and
Local
Assistance,
and
Research
and
Demonstration
Grants
and
is
proposing
to
consolidate
and
add
to
these
provisions
in
a
new
regulation.
The
new
regulation
is
intended
to
harmonize
EPA's
statutory
DBE
procurement
objectives
with
the
United
States
Supreme
Court's
decision
in
Adarand
Constructors,
Inc.
v.
Pena,
115
S.
Ct.
2097
(
1995).
In
Adarand,
the
Supreme
Court
extended
strict
judicial
scrutiny
to
federal
programs
that
use
racial
or
ethnic
criteria
as
a
basis
for
decision
making.
This
proposed
rule
reflects
EPA's
efforts
to
ensure
that
the
compelling
government
interest
of
remedying
past
and
current
racial
discrimination
through
the
use
of
agency­
wide
DBE
procurement
objectives
at
EPA
is
served
by
a
narrowly­
tailored
program.
If
you
are
a
recipient
of
an
EPA
financial
assistance
agreement
or
an
entity
receiving
an
identified
loan
under
a
financial
assistance
agreement
capitalizing
a
revolving
loan
fund,
this
proposed
rule
may
affect
you.
DATES:
Comments:
You
must
send
comments
electronically,
by
mail
or
through
hand
delivery/
courier
on
or
before
January
20,
2004.
ADDRESSES:
Send
your
comments
(
in
triplicate,
if
possible)
to:
Office
of
Environmental
Information
Docket
Environmental
Protection
Agency,
Mailcode
28221T,
1200
Pennsylvania
Ave.,
NW.,
Washington,
DC
20460,
Attention
Docket
ID
No.
OA
2002
 
0001.
Please
use
a
font
no
smaller
than
12pt.
Comments
may
also
be
submitted
electronically,
or
through
hand
delivery/
courier.
Follow
the
detailed
instructions
as
provided
in
I.
B.
of
the
SUPPLEMENTARY
INFORMATION
section.
Public
hearings:
EPA
will
hold
public
hearings
on
this
proposed
rule.
If
you
wish
to
speak,
contact
the
person(
s)
named
under
the
section
entitled
``
For
Further
Information
Contact.''
Verbatim
transcripts
of
the
hearings
will
be
available
for
reading
and
copying
at
the
official
public
docket
for
this
action
under
Docket
ID
NO.
OA
 
2002
 
0001.
See
Supplementary
Information
I.
A.
1.
FOR
FURTHER
INFORMATION
CONTACT:
Mark
Gordon,
Attorney
Advisor
at
(
202)
564
 
5951,
Kimberly
Patrick,
Attorney
Advisor
at
(
202)
564
 
5386,
or
David
Sutton,
Deputy
Director
at
(
202)
564
 
4444,
OSDBU,
U.
S.
Environmental
Protection
Agency,
Ariel
Rios
Building,
1200
Pennsylvania
Avenue
NW.,
Washington,
DC
20460.
SUPPLEMENTARY
INFORMATION:

I.
General
Information
A.
How
Can
I
Get
Copies
of
This
Document
and
Other
Related
Information?
1.
Docket.
EPA
has
established
an
official
public
docket
for
this
action
under
Docket
ID
No.
OA
 
2002
 
0001.
The
official
public
docket
consists
of
the
documents
specifically
referenced
in
this
action,
any
public
comments
received,
and
other
information
related
to
this
action.
Although
a
part
of
the
official
docket,
the
public
docket
does
not
include
Confidential
Business
Information
(
CBI)
or
other
information
whose
disclosure
is
restricted
by
statute.
The
official
public
docket
is
the
collection
of
materials
that
is
available
for
public
viewing
at
the
Office
of
Environmental
Information
Docket
in
the
EPA
Docket
Center,
(
EPA/
DC)
EPA
West,
Room
B102,
1301
Constitution
Ave.,
NW.,
Washington,
DC.
The
EPA
Docket
Center
Public
Reading
Room
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,
excluding
legal
holidays.
The
telephone
number
for
the
Reading
Room
is
(
202)
566
 
1742,
and
the
telephone
number
for
the
Office
of
Environmental
Information
is
(
202)
566
 
1752.
2.
Electronic
Access.
You
may
access
this
Federal
Register
document
electronically
through
the
EPA
Internet
under
the
``
Federal
Register''
listings
at
http://
www.
epa.
gov/
fedrgstr/.
An
electronic
version
of
the
public
docket
is
available
through
EPA's
electronic
public
docket
and
comment
system,
EPA
Dockets.
You
may
use
EPA
Dockets
at
http://
www.
epa.
gov/
edocket/
to
submit
or
view
public
comments,
access
the
index
listing
of
the
contents
of
the
official
public
docket,
and
to
access
those
documents
in
the
public
docket
that
are
available
electronically.
Once
in
the
system,
select
``
search,''
then
key
in
the
appropriate
docket
identification
number.
Certain
types
of
information
will
not
be
placed
in
the
EPA
Dockets.
Information
claimed
as
CBI
and
other
information
whose
disclosure
is
restricted
by
statute,
which
is
not
included
in
the
official
public
docket,
will
not
be
available
for
public
viewing
in
EPA's
electronic
public
docket.
EPA's
policy
is
that
copyrighted
material
will
not
be
placed
in
EPA's
electronic
public
docket
but
will
be
available
only
in
printed,
paper
form
in
the
official
public
docket.
To
the
extent
feasible,
publicly
available
docket
materials
will
be
made
available
in
EPA's
electronic
public
docket.
When
a
document
is
selected
from
the
index
list
in
EPA
Dockets,
the
system
will
identify
whether
the
document
is
available
for
viewing
in
EPA's
electronic
public
docket.
Although
not
all
docket
materials
may
be
available
electronically,
you
may
still
access
any
of
the
publicly
available
docket
materials
through
the
docket
facility
identified
in
I.
A.
1
above.
For
public
commenters,
it
is
important
to
note
that
EPA's
policy
is
that
public
comments,
whether
submitted
electronically
or
in
paper,
will
be
made
available
for
public
viewing
in
EPA's
electronic
public
docket
as
EPA
receives
them
and
without
change,
unless
the
comment
contains
copyrighted
material,
CBI,
or
other
information
whose
disclosure
is
restricted
by
statute.
When
EPA
identifies
a
comment
containing
copyrighted
material,
EPA
will
provide
a
reference
to
that
material
in
the
version
of
the
comment
that
is
placed
in
EPA's
electronic
public
docket.
The
entire
printed
comment,
including
the
copyrighted
material,
will
be
available
in
the
public
docket.
Public
comments
submitted
on
computer
disks
that
are
mailed
or
delivered
to
the
docket
will
be
transferred
to
EPA's
electronic
public
docket.
Public
comments
that
are
mailed
or
delivered
to
the
Docket
will
be
scanned
and
placed
in
EPA's
electronic
public
docket.
Where
practical,
physical
objects
will
be
photographed,
and
the
photograph
will
be
placed
in
EPA's
electronic
public
docket
along
with
a
brief
description
written
by
the
docket
staff.
For
additional
information
about
EPA's
electronic
public
docket
visit
EPA
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/
Vol.
68,
No.
142
/
Thursday,
July
24,
2003
/
Proposed
Rules
Dockets
online
or
see
67
FR
38102,
May
31,
2002.

B.
How
and
To
Whom
Do
I
Submit
Comments?
You
may
submit
comments
electronically,
by
mail,
or
through
hand
delivery/
courier.
To
ensure
proper
receipt
by
EPA,
identify
the
appropriate
docket
identification
number
in
the
subject
line
on
the
first
page
of
your
comment.
Please
ensure
that
your
comments
are
submitted
within
the
specified
comment
period.
Comments
received
after
the
close
of
the
comment
period
will
be
marked
``
late.''
EPA
is
not
required
to
consider
these
late
comments.
However,
late
comments
may
be
considered
if
time
permits.
1.
Electronically.
If
you
submit
an
electronic
comment
as
prescribed
below,
EPA
recommends
that
you
include
your
name,
mailing
address,
and
an
e­
mail
address
or
other
contact
information
in
the
body
of
your
comment.
Also
include
this
contact
information
on
the
outside
of
any
disk
or
CD
ROM
you
submit,
and
in
any
cover
letter
accompanying
the
disk
or
CD
ROM.
This
ensures
that
you
can
be
identified
as
the
submitter
of
the
comment
and
allows
EPA
to
contact
you
in
case
EPA
cannot
read
your
comment
due
to
technical
difficulties
or
needs
further
information
on
the
substance
of
your
comment.
EPA's
policy
is
that
EPA
will
not
edit
your
comment,
and
any
identifying
or
contact
information
provided
in
the
body
of
a
comment
will
be
included
as
part
of
the
comment
that
is
placed
in
the
official
public
docket,
and
made
available
in
EPA's
electronic
public
docket.
If
EPA
cannot
read
your
comment
due
to
technical
difficulties
and
cannot
contact
you
for
clarification,
EPA
may
not
be
able
to
consider
your
comment.
i.
EPA
Dockets.
Your
use
of
EPA's
electronic
public
docket
to
submit
comments
to
EPA
electronically
is
EPA's
preferred
method
for
receiving
comments.
Go
directly
to
EPA
Dockets
at
http://
www.
epa.
gov/
edocket,
and
follow
the
online
instructions
for
submitting
comments.
To
access
EPA's
electronic
public
docket
from
the
EPA
Internet
Home
Page,
select
``
Information
Sources,''
``
Dockets,''
and
``
EPA
Dockets.''
Once
in
the
system,
select
``
search,''
and
then
key
in
Docket
ID
No.
OA
 
2002
 
0001.
The
system
is
an
``
anonymous
access''
system,
which
means
EPA
will
not
know
your
identity,
e­
mail
address,
or
other
contact
information
unless
you
provide
it
in
the
body
of
your
comment.
ii.
E­
mail.
Comments
may
be
sent
by
electronic
mail
(
e­
mail)
to
oei.
docket
@
epamail.
epa.
gov
Attention
Docket
ID
No.
OA
 
2002
 
0001.
In
contrast
to
EPA's
electronic
public
docket,
EPA's
e­
mail
system
is
not
an
``
anonymous
access''
system.
If
you
send
an
e­
mail
comment
directly
to
the
Docket
without
going
through
EPA's
electronic
public
docket,
EPA's
e­
mail
system
automatically
captures
your
e­
mail
address.
E­
mail
addresses
that
are
automatically
captured
by
EPA's
e­
mail
system
are
included
as
part
of
the
comment
that
is
placed
in
the
official
public
docket,
and
made
available
in
EPA's
electronic
public
docket.
iii.
Disk
or
CD
ROM.
You
may
submit
comments
on
a
disk
or
CD
ROM
that
you
mail
to
the
mailing
address
identified
in
I.
A.
1
above.
These
electronic
submissions
will
be
accepted
in
WordPerfect
or
ASCII
file
format.
Avoid
the
use
of
special
characters
and
any
form
of
encryption.
2.
By
Mail.
Send
your
comments
(
in
triplicate,
if
possible)
to:
Office
of
Environmental
Information
Docket
Environmental
Protection
Agency,
Mailcode:
28221T,
1200
Pennsylvania
Ave.,
NW.,
Washington,
DC,
20460,
Attention
Docket
ID
No.
OA
2002
 
0001.
Please
use
a
font
size
no
smaller
than
12.
3.
By
Hand
Delivery
or
Courier.
Deliver
your
comments
(
in
triplicate,
if
possible)
to:
EPA
Docket
Center,
(
EPA/
DC)
EPA
West,
Room
B
102,
1301
Constitution
Avenue,
NW.,
Washington,
D.
C.
Attention
Docket
ID
No.
OA
2002
 
0001.
Such
deliveries
are
only
accepted
during
the
Docket's
normal
hours
of
operation
as
identified
in
I.
A.
1
above.
Please
use
a
font
size
no
smaller
than
12.
The
docket
is
an
organized
file
of
all
the
information
EPA
considered
in
developing
this
proposed
rule.
The
docketing
system
allows
you
to
readily
identify
and
locate
documents
so
you
can
participate
in
the
rulemaking.
Along
with
the
proposed
and
promulgated
standards
and
their
preambles,
contents
of
the
docket
will
serve
as
the
record
in
case
of
judicial
review.

C.
What
Should
I
Consider
as
I
Prepare
My
Comments
for
EPA?
You
may
find
the
following
suggestions
helpful
for
preparing
your
comments:

1.
Explain
your
views
as
clearly
as
possible.
2.
Describe
any
assumptions
that
you
used.
3.
Provide
any
technical
information
and/
or
data
you
used
that
support
your
views.
4.
If
you
estimate
potential
burden
or
costs,
explain
how
you
arrived
at
your
estimate.
5.
Provide
specific
examples
to
illustrate
your
concerns.
6.
Offer
alternatives.
7.
Make
sure
to
submit
your
comments
by
the
comment
period
deadline
identified.
8.
To
ensure
proper
receipt
by
EPA,
identify
the
appropriate
docket
identification
number
in
the
subject
line
on
the
first
page
of
your
response.
It
would
also
be
helpful
if
you
provided
the
name,
date,
and
Federal
Register
citation
related
to
your
comments.

D.
Will
EPA
Hold
Public
Hearings
and
Tribal
Consultations
on
This
Proposed
Rule?
EPA
plans
to
hold
a
number
of
public
hearings
on
this
proposed
rule
during
the
180
day
comment
period.
As
part
of
its
ongoing
consultation
with
Tribes,
EPA
also
plans
to
hold
a
number
of
meetings
with
Tribal
officials/
representatives
on
this
proposed
rulemaking
during
the
180
day
comment
period.
EPA
will
announce
in
the
Federal
Register
the
dates,
times
and
locations
of
these
public
hearings
and
meetings.
In
writing
the
following
proposed
preamble
and
rule,
EPA
has
considered
all
comments
received
in
response
to
the
staff
draft
of
the
preamble
and
rule,
dated
June
19,
2000,
which
was
posted
on
EPA's
website
at
http://
www.
epa.
gov/
osdbu
and
distributed
to
various
stakeholders.
Changes
have
been
made
to
this
proposed
preamble
and
rule
in
response
to
some
of
these
comments.
This
is
a
proposed
rule.
The
contents
of
today's
preamble
are
listed
in
the
following
outline:

I.
Introduction
II.
Section­
by­
Section
Analysis
A.
Subpart
A
 
General
Provisions
B.
Subpart
B
 
Certification
C.
Subpart
C
 
Good
Faith
Efforts
D.
Subpart
D
 
Fair
Share
Objectives
E.
Subpart
E
 
Recordkeeping
and
Reporting
III.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
B.
Paperwork
Reduction
Act
C.
Regulatory
Flexibility
Act
(
RFA),
as
amended
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996
(
SBREFA),
5
U.
S.
C.
601
et.
seq.
D.
Unfunded
Mandates
Reform
Act
E.
Executive
Order
13132:
Federalism
F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments
G.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks
H.
Executive
Order
13211:
Actions
that
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
I.
National
Technology
Transfer
and
Advancement
Act
I.
Introduction
40
CFR
Part
33,
Procurement
under
Assistance
Agreements,
became
effective
March
28,
1983.
These
procurement
requirements
required
recipients
of
EPA
financial
assistance
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24,
2003
/
Proposed
Rules
agreements
to
take
the
six
affirmative
steps
to
assure
that
small,
minority
and
women's
businesses
were
used
when
possible
as
sources
of
construction,
services
and
supplies.
As
part
of
a
government­
wide
effort
in
1988,
EPA
promulgated
40
CFR
Part
31,
Uniform
Administrative
Requirements
for
Grants
and
Cooperative
Agreements
to
State
and
Local
Governments.
In
1996,
the
Agency
promulgated
40
CFR
Part
30,
Grants
and
Agreements
with
Institutions
of
Higher
Education,
Hospitals,
and
Other
Non­
Profit
Organizations.
Parts
30
and
31
superseded
the
procurement
provisions
of
former
Part
33.
Parts
30
and
31
contain
DBE
Program
provisions
at
40
CFR
30.44(
b)
and
31.36(
e),
respectively.
Various
EPA
programs
have
their
own
regulations
containing
DBE
requirements.
For
example,
the
EPA
Superfund
Program
promulgated
regulations
which
contain
DBE
provisions
for
Grants
for
Technical
Assistance
at
40
CFR
35.4066(
g)
and
for
Cooperative
Agreements
and
Superfund
State
Contracts
for
Superfund
Response
Actions
at
40
CFR
35.6015(
a)(
26)
and
(
54),
35.6580
and
35.6665
(
b).
The
EPA
Clean
Water
State
Revolving
Fund
(
CWSRF)
Program
promulgated
regulations
containing
DBE
provisions
at
40
CFR
35.3145(
d)
and
(
e).
The
DWSRF
Program
has
promulgated
regulations
containing
DBE
provisions
at
40
CFR
35.3575(
d).
DBE
requirements
for
Research
and
Demonstration
Grants
can
be
found
at
40
CFR
40.145
 
3(
c).
EPA's
legal
authorities
for
its
DBE
Program
are:
Public
Law
102
 
389,
a
1993
appropriations
act
(
42
U.
S.
C.
4370d)
(
EPA's
8%
statute),
which
provides:
The
Administrator
of
the
Environmental
Protection
Agency
shall,
hereafter,
to
the
fullest
extent
possible,
ensure
that
at
least
8
per
centum
of
Federal
funding
for
prime
and
subcontracts
awarded
in
support
of
authorized
programs,
including
grants,
loans
and
contracts
for
wastewater
treatment
and
leaking
underground
storage
tanks
grants,
be
made
available
to
business
concerns
or
other
organizations
owned
or
controlled
by
socially
and
economically
disadvantaged
individuals
(
within
the
meaning
of
Section
8(
a)(
5)
and
(
6)
of
the
Small
Business
Act
(
15
U.
S.
C.
637(
a)(
5)
and
(
6)),
including
historically
black
colleges
and
universities.
For
purposes
of
this
section,
economically
and
socially
disadvantaged
individuals
shall
be
deemed
to
include
women
*
*
*
Public
Law
101
 
549,
Title
X
of
the
Clean
Air
Act
Amendments
of
1990
(
42
U.
S.
C.
7601
note)
(
EPA's
10%
statute),
which
states:

In
providing
for
any
research
relating
to
the
requirements
of
the
amendments
made
by
the
Clean
Air
Act
Amendments
which
use
funds
of
the
Environmental
Protection
Agency,
the
Administrator
of
the
Environmental
Protection
Agency
shall,
to
the
extent
practicable,
require
that
not
less
than
10
percent
of
the
total
Federal
funding
for
such
research
will
be
made
available
to
disadvantaged
business
concerns.
Nothing
in
this
title
shall
permit
or
require
the
use
of
quotas
or
a
requirement
that
has
the
effect
of
a
quota
in
determining
eligibility
*
*
*

Other
legal
authorities
include
Public
Law
99
 
499,
the
Superfund
Amendments
and
Reauthorization
Act
of
1986;
Public
Law
100
 
590,
the
Small
Business
Administration
Reauthorization
and
Amendment
Act
of
1988;
Executive
Order
12138,
``
Creating
a
National
Women's
Business
Enterprise
Policy
and
Prescribing
Arrangements
for
Developing,
Coordinating
and
Implementing
a
National
Program
for
Women's
Business
Enterprise,''
issued
May
18,
1979;
Executive
Order
11625,
``
Prescribing
Additional
Arrangements
for
Developing
and
Coordinating
a
National
Program
for
Minority
Business
Enterprise,''
issued
October
13,
1971;
and
Executive
Order
12432,
``
Minority
Business
Enterprise
Development,''
issued
July
14,
1983.
In
1995,
the
Supreme
Court's
decision
in
Adarand
Constructors,
Inc.
v.
Pena,
115
S.
Ct.
2097(
1995),
extended
strict
judicial
scrutiny
to
federal
affirmative
action
programs
that
use
racial
or
ethnic
criteria
as
a
basis
for
decision
making.
In
other
words,
such
programs
must
be
based
on
a
compelling
governmental
interest,
for
example,
remedying
the
effects
of
discrimination,
and
must
be
narrowly
tailored
to
accomplish
that
interest.
In
1996,
the
Department
of
Justice
(
DOJ)
began
a
review
of
affirmative
action
programs
in
the
Federal
Government.
In
response
to
this
review,
the
Department
of
Transportation
(
DOT)
revised
its
program
for
participation
of
DBEs
in
procurement
under
DOT's
financial
assistance
agreements.
64
FR
5096.
In
direct
Federal
procurement,
the
Small
Business
Administration
(
SBA)
has
issued
final
regulations
amending
two
programs
intended
to
foster
small
disadvantaged
business
participation,
the
8(
a)
Business
Development
and
Small
Disadvantaged
Business
Participation
Programs.
63
FR
35726;
63
FR
36120.
This
proposed
rulemaking
would
affect
only
procurements
pursuant
to
EPA
financial
assistance
agreements
rather
than
direct
Federal
procurement
actions.
All
of
EPA's
current
DBE
fair
share
objectives
and
good
faith
efforts
regulatory
provisions
would
be
deleted
as
part
of
this
rulemaking
effort,
and
the
proposed
DBE
provisions
to
be
codified
in
the
new
40
CFR
Part
33
would
apply.
In
addition,
this
proposal
would
supersede
inconsistent
provisions
of
previous
guidance
documents
for
EPA's
former
MBE
and
WBE
Program,
including,
but
not
limited
to,
OSDBU's
``
Guidance
for
Utilization
of
Small,
Minority,
and
Women's
Business
Enterprises
in
Procurement
Under
Assistance
Agreements'
(
the
1997
Guidance).
62
FR
45645.

II.
Section­
by­
Section
Analysis
Subpart
A
 
General
Provisions
Section
33.101
What
Are
the
Objectives
of
This
Part?
This
proposed
rule
is
EPA's
revision
to
its
current
MBE
and
WBE
Program.
EPA
needs
to
reconcile
its
requirements
for
financial
assistance
agreements
under
EPA's
8%
statute
and
EPA's
10%
statute
with
the
Supreme
Court's
decision
in
Adarand.
In
that
case
the
Supreme
Court
held
that
Federal
Government
programs
that
use
race
or
national
origin
as
a
criterion
for
decision
making
are
subject
to
strict
judicial
scrutiny.
Such
programs
must
be
based
on
a
compelling
government
interest,
for
example,
remedying
the
effects
of
racial/
ethnic
discrimination,
and
must
be
narrowly
tailored
to
accomplish
that
interest.
EPA's
proposed
rulemaking
is
one
part
of
the
Agency's
overall
effort
to
review
and,
where
necessary,
revise
affirmative
action
programs
in
light
of
Adarand.
This
rulemaking
proposal
tailors
EPA's
DBE
Program
more
precisely
to
the
objective
of
remedying
the
effects
of
racial/
ethnic
discrimination.

Section
33.102
When
Do
the
Requirements
of
This
Part
Apply?
This
Part's
requirements
apply
to
procurement
under
EPA
financial
assistance
agreements,
including
financial
assistance
agreements
to
capitalize
revolving
loan
funds,
performed
entirely
within
the
United
States.
The
term
``
United
States''
is
later
defined
in
33.103
to
include
the
Commonwealth
of
Puerto
Rico
and
any
other
territories
and
possessions
of
the
United
States.

Section
33.103
What
Do
the
Terms
in
This
Part
Mean?
To
the
extent
possible,
EPA
has
referred
to
definitions
contained
in
40
CFR
Parts
30,
31
and
35,
and
other
agencies'
existing
regulations,
e.
g.,
Historically
Black
College
or
University
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/
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July
24,
2003
/
Proposed
Rules
(
HBCU).
Other
definitions
were
derived
from
the
1997
Guidance.
EPA
is
creating
a
new
term,
DBE,
for
its
revised
program.
The
new
Part
33
defines
DBE
as
an
entity
owned
or
controlled
by
an
individual
who
is
socially
and
economically
disadvantaged
under
EPA's
8%
statute,
an
entity
owned
and
controlled
by
an
individual
who
is
socially
and
economically
disadvantaged
under
EPA's
10%
statute,
as
well
as
a
Small
Business
Enterprise
(
SBE),
a
Small
Business
in
a
Rural
Area
(
SBRA),
a
Labor
Surplus
Area
Firm
(
LSAF),
a
Historically
Underutilized
Business
(
HUB)
Zone
Small
Business
Concern,
or
a
concern
under
a
successor
program.
Unlike
EPA's
previous
program,
the
terms
MBE
and
WBE
no
longer
describe
the
entire
program.
Instead,
these
terms
are
now
merely
subsets
of
the
entities
described
as
DBEs.
As
a
result,
the
definition
of
MBE
has
been
modified
to
include
an
entity
owned
and/
or
controlled
by
an
individual
who
is
socially
and
economically
disadvantaged
under
either
EPA's
8%
or
10%
statutes.
In
addition,
the
term
``
financial
assistance
agreement''
has
been
defined
as
both
grants
and
cooperative
agreements
awarded
by
EPA,
including
such
agreements
used
to
capitalize
revolving
loan
funds
including,
but
not
limited
to,
the
Clean
Water
State
Revolving
Fund,
the
Drinking
Water
State
Revolving
Fund
or
the
Brownfields
Revolving
Fund
Programs.
The
term
``
identified
loan''
is
also
defined
to
indicate
those
projects
and
activities
to
which
the
requirements
of
this
Part
apply
for
recipients
of
capitalization
agreements
for
revolving
loan
funds.
For
Brownfields
capitalization
grant
recipients,
the
identified
loans
will
be
those
funded
with
EPA
financial
assistance.
The
definition
of
Small
Business
in
Rural
Areas
has
been
shortened
from
the
one
contained
in
the
1997
Guidance.
No
substantive
change
is
intended.
The
U.
S.
Department
of
Agriculture
(
USDA)
Rural­
Urban
Continuum
Classification
Code
applies
to
every
county
in
the
United
States,
and
classifies
counties
based
on
proximity
to
metropolitan
areas.
EPA
is
using
Codes
6
 
9
as
rural
counties
for
purposes
of
identifying
small
businesses
in
rural
areas.

Section
33.104
May
a
Recipient
Apply
for
a
Waiver
From
the
Requirements
of
This
Part?
A
recipient
will
be
able
to
apply
for
a
waiver
in
a
special
or
exceptional
situation
where
the
recipient
believes
that
compliance
with
any
of
the
requirements
in
this
Rule
would
be
impractical.
The
Agency
believes
that
the
waiver
provision
is
an
important
component
of
narrowly
tailoring
its
DBE
Program
to
unique
local
circumstances
and
to
ensure
non­
discrimination.
EPA
intends
to
carefully
review
any
waiver
applications
to
ensure
that
any
proposed
alternative
program
is
able
to
meet
the
objectives
of
EPA's
DBE
Program
and
is
in
accordance
with
law.
This
added
flexibility
could
allow
an
EPA
financial
assistance
agreement
recipient
to
deal
creatively
with
its
specific
circumstances.

Section
33.105
What
Are
the
Compliance
and
Enforcement
Provisions
of
This
Part?

This
section
reserves
to
EPA
the
right
to
take
remedial
action
under
existing
legal
authorities
if
a
recipient
fails
to
comply
with
any
of
the
requirements
of
the
Rule.

Section
33.106
What
Assurances
Must
EPA
Financial
Assistance
Recipients
Obtain
From
Their
Contractors?

An
EPA
financial
assistance
recipient
must
ensure
that
the
contract
term
and
condition
in
the
Appendix
to
this
Rule
is
included
in
the
procurement
contracts
it
awards
under
EPA
financial
assistance
agreements.
This
includes
contracts
under
identified
loans
pursuant
to
EPA
financial
assistance
agreements
capitalizing
revolving
loan
fund
programs.
This
term
and
condition
ensures
that
a
recipient
applies
pertinent
provisions
of
this
Rule
to
its
prime
contractor.

Section
33.107
What
Are
the
Rules
Governing
Availability
of
Records,
Cooperation,
and
Intimidation
and
Retaliation?

Paragraph
(
a)
of
this
section
discusses
the
availability
to
the
general
public
of
information
concerning
EPA's
DBE
Program.
Paragraphs
(
b)
and
(
c)
discuss
the
obligation
of
all
participants
in
EPA's
DBE
Program
to
cooperate
and
never
use
intimidation
and
retaliation
with
respect
to
EPA's
DBE
Program.

Subpart
B
 
Certification
Section
33.201
What
Does
This
Subpart
Require?

Currently
EPA
recognizes
an
entity
which
is
certified
as
socially
and
economically
disadvantaged
by
the
Small
Business
Administration
(
SBA),
certified
as
an
MBE
by
a
State
or
Federal
Agency
or
self­
certifies
that
it
is
an
independent
business
concern
owned
and
controlled
by
a
minority
group
member(
s)
as
an
MBE.
40
CFR
35.6015
(
26);
the
1997
Guidance,
pp.
3
 
2
through
3
 
6.
EPA
is
proposing
to
make
four
changes
to
the
current
certification
requirements.
The
first
change
is
to
no
longer
allow
an
entity
to
self­
certify
as
being
owned
and/
or
controlled
by
a
socially
and
economically
disadvantaged
individual
or
as
a
WBE
under
EPA's
8%
or
10%
statutes.
The
second
change
is
to
allow
recognition
of
certifications
of
entities
as
owned
and/
or
controlled
by
a
socially
and
economically
disadvantaged
individual
or
by
a
woman
under
EPA's
8%
or
10%
statutes
by
Indian
Tribal,
State
(
including
Insular
Areas)
and
local
Governments
or
independent
private
organizations
so
long
as
the
applicable
criteria
match
those
under
SBA's
applicable
8(
a)
Business
Development
Program
regulations.
The
third
change
is
to
clarify
that
EPA
will
accept
DOT
DBE
certifications
of
U.
S.
citizens
as
valid
certifications
under
this
program.
The
fourth
change
is
that
EPA
will
set
up
its
own
certification
program
with
the
possible
use
of
EPA
Private
Certifiers
to
assist
EPA
in
its
certification
determinations.
The
provisions
for
certification
under
EPA's
8%
and
10%
statutes
have
been
separated
from
one
another
since
the
presumptions
under
those
statutes
are
different.
Because
EPA's
8%
statute
incorporates
Section
8(
a)(
5)
of
the
Small
Business
Act,
this
Rule
adopts
for
purposes
of
the
8%
statute
SBA's
regulatory
presumption
that
the
following
individuals
are
socially
disadvantaged:
Black
Americans;
Hispanic
Americans;
Native
Americans
(
American
Indians,
Eskimos,
Aleuts
or
Native
Hawaiians);
Asian
Pacific
Americans
(
persons
with
origins
from
Burma,
Thailand,
Malaysia,
Indonesia,
Singapore,
Brunei,
Japan,
China
(
including
Hong
Kong
and
Macao),
Taiwan,
Laos,
Cambodia
(
Kampuchea),
Vietnam,
Korea,
the
Phillippines,
U.
S.
Trust
Territory
of
the
Pacific
Islands,
(
Republic
of
Palau),
Republic
of
the
Marshall
Islands,
Federated
States
of
Micronesia,
the
Commonwealth
of
the
Northern
Mariana
Islands,
Guam,
Samoa,
Fiji,
Tonga,
Kiribati,
Tuvalu,
or
Nauru);
Subcontinent
Asian
Americans
(
persons
with
origins
from
India,
Pakistan,
Bangladesh,
Sri
Lanka,
Bhutan,
the
Maldives
Islands
or
Nepal);
and
members
of
other
groups
designated
from
time
to
time
by
SBA.
As
is
the
case
under
SBA's
8(
a)
Business
Development
Program,
Brazilian
Americans
with
Portugese
surnames
and
Portugese
Americans
would
be
considered
Hispanic
Americans
under
this
Program.
In
addition,
Congress
has
by
statute
established
that
HBCUs
and
women
also
automatically
qualify
as
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/
Vol.
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No.
142
/
Thursday,
July
24,
2003
/
Proposed
Rules
socially
and
economically
disadvantaged
under
EPA's
8%
statute.
An
entity
must
still
be
certified
by
a
third
party
as
to
ownership
or
control
in
order
to
be
eligible
to
participate
as
a
WBE
contractor
for
an
EPA
recipient
under
the
DBE
Program.
EPA's
10%
statute
also
adopts
SBA's
regulatory
presumption
regarding
the
socially
disadvantaged
status
of
the
individuals
listed
above.
However,
EPA's
10%
statute
also
presumes
that
Black
Americans,
Hispanic
Americans,
Native
Americans,
Asian
Americans,
Women
and
Disabled
Americans
are
socially
and
economically
disadvantaged
individuals.
Furthermore,
Congress
provided
in
EPA's
10%
statute
that
the
following
institutions
are
presumed
to
be
entities
owned
and
controlled
by
socially
and
economically
disadvantaged
individuals:
HBCUs,
colleges
and
universities
having
a
student
body
in
which
40%
of
the
students
are
Hispanic,
Minority
Institutions
and
private
and
voluntary
organizations
controlled
by
individuals
who
are
socially
and
economically
disadvantaged.
EPA's
8%
and
10%
statutes
may
be
distinguished
by
their
provisions
regarding
ownership
and
control.
EPA's
8%
statute
references
entities
owned
or
controlled
by
socially
and
economically
disadvantaged
individuals
while
EPA's
10%
statute
references
entities
owned
and
controlled
by
socially
and
economically
disadvantaged
individuals.

Section
33.202
How
Does
an
Entity
Qualify
as
an
MBE
or
WBE
Under
EPA's
8%
Statute?
An
entity
must
establish
that
it
is
owned
or
controlled
by
socially
and
economically
disadvantaged
individuals
who
are
of
good
character
and
citizens
of
the
United
States.
With
one
exception,
definitions
of
``
ownership,''
``
control''
and
``
socially
and
economically
disadvantaged
individuals''
are
the
same
as
under
the
Small
Business
Act
and
its
implementing
regulations
at
13
CFR
124.105,
124.106,
124.103
and
124.104.
(
See
also
13
CFR
124.109
for
special
rules
applicable
to
Indian
tribes
and
Alaska
Native
Corporations;
13
CFR
124.110
for
special
rules
applicable
to
Native
Hawaiian
Organizations).
Generally,
these
regulations
provide
that
ownership
must
be
real,
substantial
and
continuing,
going
beyond
pro
forma
ownership
of
the
business
concern
as
reflected
in
ownership
documents.
Owners
must
share
in
the
risks
and
profits
of
the
business
concern
commensurate
with
their
ownership
interests.
Control
is
demonstrated
in
most
cases
by
the
power
to
direct
or
cause
the
direction
of
the
management
and
policies
of
the
business
concern
and
to
make
day­
to­
day
as
well
as
long­
term
decisions
on
matters
of
management,
policy
and
operations.
The
one
exception
from
the
regulation
regarding
economic
disadvantage
worth
noting
is
the
exclusion
of
individuals
with
a
net
worth
greater
than
or
equal
to
$
250,000
from
initial
eligibility
and
individuals
with
a
net
worth
greater
than
or
equal
to
$
750,000
from
continued
eligibility.
Similar
to
DOT,
EPA
is
proposing
to
make
$
750,000
the
cut
off
point
for
both
initial
and
continued
eligibility
under
the
DBE
Program.
HBCUs
do
not
need
to
go
through
the
certification
process
contained
in
Subpart
B
of
this
Rule
since
EPA's
8%
statute
automatically
deems
an
HBCU
to
be
owned
or
controlled
by
socially
and
economically
disadvantaged
individuals.
While
women
are
also
deemed
to
be
socially
and
economically
disadvantaged
under
EPA's
8%
statute,
entities
must
still
evidence
ownership
or
control
in
accordance
with
paragraph
(
a)
of
this
section,
which
may
be
accomplished
by
certification,
pursuant
to
§
33.204.

Section
33.203
How
Does
an
Entity
Qualify
as
an
MBE
or
WBE
Under
EPA's
10%
Statute?
An
entity
must
establish
that
it
is
owned
and
controlled
by
socially
and
economically
disadvantaged
individuals
who
are
of
good
character
and
citizens
of
the
United
States.
Again
with
the
same
notable
exception
discussed
above
regarding
the
$
750,000
personal
net
worth
threshold,
definitions
of
``
ownership,''
``
control''
and
``
socially
and
economically
disadvantaged
individuals''
are
the
same
as
under
the
Small
Business
Act
and
its
implementing
regulations
at
13
CFR
124.105,
124.106,
124.103
and
124.104.
(
See
also
13
CFR
124.109
for
special
rules
applicable
to
Indian
tribes
and
Alaska
Native
Corporations;
13
CFR
124.110
for
special
rules
applicable
to
Native
Hawaiian
Organizations).
With
one
exception,
the
provisions
contained
within
subparagraphs
(
d)
 
(
g)
of
this
section
are
derived
from
EPA's
10%
statute.
EPA's
10%
statute
contains
a
presumption
that
colleges
and
universities
having
a
student
body
in
which
40%
of
the
students
are
Hispanic
should
be
considered
entities
owned
and
controlled
by
socially
and
economically
disadvantaged
individuals.
In
order
to
eliminate
the
burden
of
additional
certification
by
such
colleges
and
universities,
EPA
is
proposing
instead
to
apply
the
presumption
to
colleges
and
universities
which
have
qualified
as
Hispanic­
Serving
Institutions
under
the
Department
of
Education
regulations
at
34
CFR
Part
606
or
as
Minority
Institutions
as
defined
by
§
33.103
of
this
proposed
Rule.
Among
other
things,
Hispanic­
Serving
Institutions
and
Minority
Institutions
require
a
student
body
in
which
50%
of
the
students
are
Hispanic.
Because
EPA's
10%
statute
only
requires
the
Agency
to
implement
the
statute's
requirements
to
the
``
extent
practicable,''
the
Agency,
for
administrative
reasons,
may
propose
regulatory
provisions
which
vary
from
the
exact
wording
of
the
statute.

Section
33.204
Where
Does
an
Entity
Become
Certified
Under
EPA's
8%
and
10%
Statutes?
This
proposed
rule
discontinues
acceptance
of
an
individual's
selfcertification
regarding
his
or
her
racial/
ethnic
status
in
order
to
ensure
consistency
with
the
approach
taken
by
other
Federal
agencies.
For
example,
SBA
under
its
Small
Disadvantaged
Business
Program
no
longer
permits
self­
certification
of
social
and
economic
disadvantaged
status.
Similarly,
DOT
does
not
allow
self­
certification
under
its
DBE
Program.
EPA
is
also
proposing
to
discontinue
self­
certification
by
WBEs.
In
addition,
EPA
would
require
that
an
entity
first
attempt
to
become
certified
as
an
MBE
or
WBE
by
the
SBA
or
DOT
under
their
respective
programs
or
by
an
Indian
Tribal
Government,
State
Government,
local
Government,
or
independent
private
organization
consistent
with
EPA's
8%
or
10%
statute
as
applicable.
An
entity
may
only
attempt
to
become
certified
by
EPA
as
an
MBE
or
WBE
under
the
procedures
described
in
§
33.205
if
that
entity
is
unable
to
obtain
certification
from
the
other
certifying
entities
described
above.
However,
as
part
of
the
certification
process,
EPA
will
make
the
determination
as
to
whether
an
entity's
current
certification
by
DOT,
an
Indian
Tribal
Government,
State
Government,
local
Government,
or
independent
private
organization
constitutes
acceptable
certification
under
EPA's
8%
statute,
EPA's
10%
statute
or
both.
Acceptance
of
certifications
from
these
other
certifying
entities
is
EPA's
attempt
at
easing
the
burden
created
by
discontinuation
of
the
self­
certification
option.
EPA
currently
envisions
five
categories
of
individuals
or
groups
who
would
qualify
for
MBE
or
WBE
certification
under
EPA's
DBE
Program
but
would
be
unable
to
obtain
MBE
or
WBE
certification
from
SBA
or
DOT
due
to
differences
in
those
Agencies'
respective
programs.
These
categories
are
women­
owned
and
minority­
owned
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/
Vol.
68,
No.
142
/
Thursday,
July
24,
2003
/
Proposed
Rules
concerns
that
do
not
meet
the
SBA/
DOT
size
standards
(
EPA's
8%
and
10%
statutes),
Disabled
Americans
(
EPA's
10%
statute),
private
and
voluntary
organizations
controlled
by
individuals
who
are
socially
and
economically
disadvantaged
(
EPA's
10%
statute),
entities
which
are
certified
under
criteria
which
are
inconsistent
with
EPA's
DBE
Program
criteria
(
EPA's
8%
and
10%
statutes)
and
any
entity
claiming
that
it
is
owned
or
controlled
by
socially
and
economically
disadvantaged
individuals
under
EPA's
8%
statute.
SBA
and
DOT
currently
do
not
certify
the
first
three
categories
and,
as
to
the
fifth
category,
requires
a
showing
of
ownership
and
control.
Accordingly,
these
categories
of
individuals
or
groups
may
initially
come
to
EPA
for
MBE
or
WBE
certification
if
that
individual
or
group
is
also
unable
to
obtain
MBE
or
WBE
certification
from
an
Indian
Tribal,
State,
or
local
Government
or
an
independent
private
organization
in
accordance
with
EPA's
8%
or
10%
statute
as
applicable.
Finally,
in
implementing
its
own
certification
program,
the
Agency
may
use
EPA
Private
Certifiers
to
assist
the
Agency
in
its
certification
determinations.
EPA
has
had
a
longstanding
policy
of
requiring
U.
S.
citizenship
for
eligibility
as
an
MBE
or
WBE.
See
``
EPA
Guidance
for
Utilization
of
S/
M/
WBE
in
Procurement
under
Assistance
Agreements'
dated
05/
22/
86.
This
policy
was
continued
in
the
Agency's
1997
Guidance.
Currently,
the
Agency's
regulatory
definition
of
an
MBE
requires
U.
S.
citizenship
for
a
minority
group
member.
See
40
CFR
35.6015(
a)(
26)(
iii).
EPA
believes
that
its
requirement
for
U.
S.
citizenship
is
consistent
with
SBA's
8(
a)
Business
Development
Program
regulations
at
13
CFR
124.101,
and
its
Small
Disadvantaged
Business
Programs
regulations
at
13
CFR
124.1002(
d).
While
the
Agency
recognizes
that
DOT
allows
lawfully
admitted
permanent
residents
to
qualify
for
certification
under
its
DBE
Program
(
49
CFR
26.67),
the
Agency
believes
that
given
its
close
association
with
SBA
requirements,
it
is
appropriate
for
U.
S.
citizenship
to
be
a
requirement
for
certification
by
EPA
as
well.
In
addition,
at
this
time,
EPA
lacks
data
regarding
how
many
additional
entities
EPA
would
have
to
certify
if
the
Agency
were
to
change
its
longstanding
policy
on
this
issue
and
the
possible
resource
implications
of
such
a
policy
change;
the
Agency
believes
that
changing
its
policy
on
this
issue
could
result
in
a
substantial
increase
to
the
number
of
entities
EPA
would
have
to
certify.
EPA
welcomes
public
comment
on
these
proposed
changes,
especially
from
large
businesses
and
members
of
the
DBE
community
since
they
are
most
likely
to
be
directly
affected
if
these
proposed
changes
become
part
of
the
final
rule.
In
addition,
because
EPA
continues
to
explore
opportunities
to
standardize
DBE
certification
with
other
Federal
agencies,
the
Agency
encourages
specific
comments
on
the
requirement
for
U.
S.
citizenship
under
this
program,
and
the
resource
implications
for
the
Agency
if
it
were
to
change
its
policy
of
requiring
U.
S.
citizenship
for
certification
by
EPA.

Section
33.205
How
Does
an
Entity
Become
Certified
by
EPA?

This
section
describes
the
EPA
certification
application
process,
including
procedures
regarding
the
filing
of
an
application,
application
processing,
EPA's
ownership
and/
or
control
determination,
EPA's
disadvantaged
determination
and
evaluation
standards.

Section
33.206
Is
There
a
List
of
Certified
MBEs
and
WBEs?

This
provision
provides
two
ways
someone
can
obtain
a
list
of
certified
MBEs
and
WBEs
under
EPA's
DBE
Program,
via
internet
or
mail.

Section
33.207
Can
an
Entity
Reapply
to
EPA
for
MBE
or
WBE
Certification?

This
section
describes
how
long
an
entity
must
wait
before
reapplying
to
EPA
for
MBE
or
WBE
certification.

Section
33.208
How
Long
Does
an
MBE
or
WBE
Certification
From
EPA
Last?

This
provision
states
that
MBE
or
WBE
certifications
from
EPA
generally
last
for
three
years.

Section
33.209
Can
EPA
Re­
Evaluate
the
MBE
or
WBE
Status
of
an
Entity
After
EPA
Certifies
It
To
Be
an
MBE
or
WBE?

This
section
explains
procedures
for
removal
of
an
entity
from
the
EPA
list
of
certified
MBEs
and
WBEs.
Credible
information
calling
into
question
an
entity's
eligibility
as
an
MBE
or
WBE
may
come
from
any
source.

Section
33.210
Does
an
Entity
Certified
as
an
MBE
or
WBE
by
EPA
Need
To
Keep
EPA
Informed
of
Any
Changes
Which
May
Affect
the
Entity's
Certification?

This
provision
requires
an
annual
affidavit
from
EPA
certified
MBEs
or
WBEs
affirming
that
no
changes
in
circumstance
have
occurred
that
affect
the
entity's
status
as
an
MBE
or
WBE.
In
addition
to
this
annual
affidavit,
MBEs
and
WBEs
certified
by
EPA
are
under
a
constant
requirement
throughout
the
year
to
keep
EPA
informed
of
any
changes
in
circumstance
which
might
affect
that
entity's
status
as
an
MBE
or
WBE.

Section
33.211
What
Is
an
EPA
Private
Certifier?

This
provision
generally
describes
the
role
of
an
EPA
Private
Certifier.
In
all
cases,
EPA
shall
make
the
determination
as
to
whether
a
particular
entity
should
be
certified
as
an
MBE
or
WBE.
EPA
Private
Certifiers
are
used
by
EPA
merely
to
assist
in
the
Agency's
certification
determination.

Section
33.212
Can
an
EPA
Private
Certifier
Charge
a
Fee
to
an
Entity
To
Process
the
Entity's
Application
for
MBE
or
WBE
Certification?

A
reasonable
fee,
not
contingent
on
whether
the
entity
is
eventually
certified
as
an
MBE
or
WBE
by
EPA,
may
be
charged
with
the
permission
of
the
Agency.

Section
33.213
How
Does
an
Organization
or
Business
Concern
Become
an
EPA
Private
Certifier?

This
provision
establishes
the
means
by
which
an
organization
or
business
concern
may
become
an
EPA
Private
Certifier.
In
addition,
this
provision
describes
some
of
the
requirements
an
organization
or
business
concern
must
meet
in
order
to
be
an
EPA
Private
Certifier.

Section
33.214
How
Long
May
an
Organization
or
Business
Concern
Be
an
EPA
Private
Certifier?

The
length
of
time
an
organization
or
business
concern
may
be
an
EPA
Private
Certifier
will
be
negotiated
between
EPA
and
that
organization
or
business
concern.

Section
33.215
Is
There
a
List
of
EPA
Private
Certifiers?

This
provision
provides
two
ways
someone
can
obtain
a
list
of
EPA
Private
Certifiers
under
EPA's
DBE
Program,
via
internet
or
mail.

Section
33.216
What
Is
the
Process
for
Appealing
or
Challenging
an
EPA
MBE
or
WBE
Certification
Determination?

This
section
describes
the
way
in
which
an
entity
who
has
been
denied
MBE
or
WBE
certification
by
EPA
or
a
third
party
who
disagrees
with
EPA's
decision
to
certify
an
entity
as
an
MBE
or
WBE
can
submit
an
appeal
or
challenge
to
the
Agency.
Included
in
these
procedures
are
filing
deadlines,
appeal
or
challenge
content
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Federal
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/
Vol.
68,
No.
142
/
Thursday,
July
24,
2003
/
Proposed
Rules
requirements
and
the
Agency's
standard
of
review.

Section
33.217
What
Conduct
Is
Prohibited
by
This
Subpart?

This
provision
prohibits
false,
fraudulent
or
deceitful
conduct
on
the
part
of
entities
attempting
to
participate
in
the
DBE
Program.
It
has
been
placed
in
the
Rule
in
order
to
protect
the
integrity
of
the
DBE
Program.

Subpart
C
 
Good
Faith
Efforts
Section
33.301
What
Does
This
Subpart
Require?

The
good
faith
efforts
required
by
this
section
are
activities
by
a
recipient
or
its
prime
contractor
to
increase
DBE
awareness
of
procurement
opportunities
through
race/
gender
neutral
efforts.
Race/
gender
neutral
efforts
are
ones
which
increase
awareness
of
contracting
opportunities
in
general,
including
outreach,
recruitment
and
technical
assistance.
The
good
faith
efforts
must
be
made
by
a
recipient
and
its
prime
contractor
toward
all
DBEs,
including
SBEs,
LSAFs
and
SBRAs
and
not
just
MBEs
and
WBEs,
even
if
the
fair
share
objective
requirements
of
Subpart
D
have
been
met.
For
purposes
of
simplification,
EPA
has
combined
the
six
positive
efforts
of
40
CFR
30.44(
b)
applicable
to
institutions
of
higher
education,
hospitals
and
other
non­
profit
organizations
with
the
six
affirmative
steps
of
40
CFR
31.36(
e)
applicable
to
Indian
Tribal,
State,
and
local
Government
recipients
and
renamed
them
the
six
``
good
faith
efforts.''
is
not
the
intention
of
the
Agency
to
change
the
substance
of
the
positive
efforts
or
the
affirmative
steps.
The
six
good
faith
efforts
required
by
this
section
must
be
performed
by
all
recipients
(
including
recipients
who
have
been
exempted
under
§
33.411
from
the
requirements
of
applying
fair
share
objectives)
and
their
prime
contractors,
if
they
award
subcontracts,
for
the
procurement
categories
of
construction,
equipment,
services
(
including
consulting
services)
and
supplies.
EPA
offers
the
following
examples
to
assist
recipients
and
prime
contractors
in
carrying
out
the
good
faith
efforts.
(
1)
Ensure
DBEs
are
made
aware
of
contracting
opportunities
to
the
fullest
extent
practicable
through
outreach
and
recruitment
activities.
For
Indian
Tribal,
State
and
local
Government
recipients,
this
will
include
placing
DBEs
on
solicitation
lists
and
soliciting
them
whenever
they
are
potential
sources.
(
a)
Maintain
and
update
a
listing
of
qualified
DBEs
that
can
be
solicited
for
construction,
equipment,
services
and/
or
supplies.
(
b)
Provide
listings
to
all
interested
parties
who
request
copies
of
the
bidding
or
proposing
documents.
(
c)
Contact
appropriate
sources
within
your
geographic
area
and
State
to
identify
qualified
DBEs
for
placement
on
your
DBE
business
listings.
(
d)
Utilize
other
DBE
listings
such
as
those
of
the
State's
Minority
Business
Office,
the
Small
Business
Administration,
Minority
Business
Development
Agency
(
MBDA)
of
the
Department
of
Commerce,
EPA
OSDBU,
and
DOT.
(
e)
Have
State
environmental
agency
personnel
review
solicitation
lists.
(
2)
Make
information
of
forthcoming
opportunities
available
to
DBEs
and
arrange
time
frames
for
contracts
and
establish
delivery
schedules,
where
the
requirements
permit,
in
a
way
that
encourages
and
facilitates
participation
by
DBEs
in
the
competitive
process.
This
includes,
whenever
possible,
posting
solicitations
for
bids
or
proposals
for
a
minimum
of
30
calendar
days
before
the
bid
or
proposal
closing
date.
(
a)
Develop
realistic
delivery
schedules
which
may
provide
for
greater
DBE
participation.
(
b)
Advertise
through
the
minority
media
in
order
to
facilitate
DBE
utilization.
Such
advertisements
may
include,
but
are
not
limited
to,
contracting
and
subcontracting
opportunities,
hiring
and
employment,
or
any
other
matter
related
to
the
project.
(
c)
Advertise
in
general
circulation
publications,
trade
publications,
State
agency
publications
and
minority
and
women's
business
focused
media
concerning
contracting
opportunities
on
your
projects.
Maintain
a
list
of
minority
and/
or
women's
business­
focused
publications
that
may
be
utilized
to
solicit
DBEs.
(
3)
Consider
in
the
contracting
process
whether
firms
competing
for
large
contracts
could
subcontract
with
DBEs.
For
Indian
Tribal,
State
and
local
Government
recipients,
this
will
include
dividing
total
requirements
when
economically
feasible
into
smaller
tasks
or
quantities
in
order
to
increase
opportunities
for
participation
by
DBEs
in
the
competitive
process.
(
a)
Perform
an
analysis
to
identify
portions
of
work
that
can
be
divided
and
performed
by
qualified
DBEs.
(
b)
Scrutinize
the
elements
of
the
total
project
to
develop
economical
units
of
work
that
are
within
the
bonding
range
of
DBEs.
(
c)
Conduct
meetings,
conferences,
and
follow­
ups
with
DBE
associations
and
minority
media
to
inform
these
groups
of
opportunities
to
provide
construction,
equipment,
services
and
supplies.
(
4)
Encourage
contracting
with
a
consortium
of
DBEs
when
a
contract
is
too
large
for
one
of
these
firms
to
handle
individually.
(
a)
Notify
DBEs
of
future
procurement
opportunities
so
they
may
establish
bidding
solicitations
and
procurement
plans.
(
b)
Provide
DBE
trade
organizations
with
succinct
summaries
of
solicitations.
(
c)
Provide
interested
DBEs
with
adequate
information
about
plans,
specifications,
timing
and
other
requirements
of
the
proposed
projects.
(
5)
Use
the
services
and
assistance
of
the
SBA
and
the
MBDA.
(
a)
Use
the
services
of
outreach
programs
sponsored
by
the
MBDA
and/
or
the
SBA
to
recruit
bona
fide
firms
for
placement
on
DBE
bidders
lists
to
assist
these
firms
in
the
development
of
bid
packaging.
(
b)
Seek
out
Minority
Business
Development
Centers
(
MBDCs)
to
assist
recipients
and
prime
contractors
in
identifying
DBEs
for
potential
work
opportunities
on
projects.
Appropriate
use
of
the
services
and
assistance
of
the
SBA
and
the
MBDA
depends
on
the
circumstances.
It
may
involve
using
the
services
of
outreach
programs
sponsored
by
the
MBDA
and/
or
the
SBA
to
recruit
bona
fide
firms
for
placement
on
DBE
bidder's
lists
to
assist
the
firms
in
the
development
of
bid
packages.
Recipients
and
prime
contractors
may
use
SBA's
Pro­
Net
Procurement
Marketing
and
Access
Network
services
to
identify
available
DBEs
to
do
the
work.
Recipients
and
prime
contractors
may
utilize
MBDCs
for
assistance
in
identifying
DBEs
for
potential
work
opportunities
on
contracts
under
EPA
financial
assistance
agreements,
as
well
as
using
MBDA's
Phoenix
dBASE
System
to
identify
available
DBEs
to
do
the
work.
(
6)
If
the
prime
contractor
awards
subcontracts,
require
the
prime
contractor
to
take
the
steps
in
subparagraphs
(
1)
 
(
5)
of
this
section.

Section
33.302
Are
There
Any
Additional
Contract
Administration
Requirements?

The
first
provision
of
this
section
is
intended
to
ensure
that
subcontractors
receive
prompt
payment
from
prime
contractors.
The
other
provisions
of
this
section,
including
the
requirement
to
complete
the
forms
mentioned
below,
are
intended
to
prevent
any
``
bait
and
switch''
tactics
at
the
subcontract
level
by
prime
contractors
which
may
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/
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24,
2003
/
Proposed
Rules
circumvent
the
spirit
of
the
DBE
Program.
In
addition,
this
proposal
would
require
a
recipient
to
be
notified
in
writing
before
its
prime
contractor
could
terminate
a
DBE
subcontractor
for
convenience
and
then
perform
the
work
itself.
Furthermore,
when
a
DBE
subcontractor
is
terminated
or
fails
to
complete
its
work
under
the
subcontract
for
any
reason,
the
recipient
must
require
the
prime
contractor
to
make
good
faith
efforts
if
the
prime
contractor
chooses
to
hire
another
subcontractor.
A
recipient
must
also
require
its
prime
contractor
to
continue
to
make
the
good
faith
efforts
even
if
the
fair
share
objectives
in
Subpart
D
of
this
Rule
have
been
met.
Finally,
this
proposed
rule
mentions
three
new
forms
which
are
required
if
there
are
DBE
subcontractors
involved
in
a
procurement.
First,
a
recipient
must
require
its
prime
contractor
to
provide
EPA
Form
6100
 
2
 
DBE
Program
Subcontractor
Participation
Form
to
all
of
its
DBE
subcontractors.
EPA
Form
6100
 
2
 
DBE
Program
Subcontractor
Participation
Form
will
allow
DBE
subcontractors
the
option
of
describing
to
EPA
the
work
the
DBE
subcontractor
received
from
the
prime
contractor,
how
much
the
DBE
subcontractor
was
paid
and
any
other
concerns
the
DBE
subcontractor
might
have.
Second,
a
recipient
must
require
its
prime
contractor
to
have
any
anticipated
DBE
subcontractors
complete
EPA
Form
6100
 
3
 
DBE
Program
Subcontractor
Performance
Form.
The
prime
contractor
would
then
submit
this
form
as
part
of
its
bid
or
proposal
package
when
competing
for
a
procurement.
Third,
a
recipient
must
have
its
prime
contractor
complete
EPA
Form
6100
 
4
 
DBE
Program
Subcontractor
Utilization
Form
whenever
applicable
and
submit
the
form
as
part
of
the
prime
contractor's
bid
or
proposal
package
when
competing
for
a
procurement.

Section
33.303
Are
There
Special
Rules
for
Loans
Under
EPA
Financial
Assistance
Agreements?
A
recipient
of
an
EPA
financial
assistance
agreement
to
capitalize
a
revolving
loan
fund,
such
as
a
State
under
the
CWSRF
or
DWSRF
or
an
eligible
entity
under
the
Brownfields
Cleanup
Revolving
Loan
Fund
program,
must
require
that
borrowers
receiving
identified
loans
comply
with
the
good
faith
efforts
described
in
§
33.301
and
the
contract
administration
requirements
of
§
33.302.
This
provision
does
not
require
that
such
private
or
non
profit
borrowers
expend
identified
loan
funds
in
compliance
with
any
other
procurement
procedures
contained
in
40
CFR
Part
30,
40
CFR
Part
31,
or
40
CFR
Part
35,
Subpart
O,
as
applicable.

Section
33.304
Must
a
Native
American
(
Either
as
an
Individual,
Organization,
Tribe
or
Tribal
Government)
Recipient
or
Prime
Contractor
Follow
the
Six
Good
Faith
Efforts?

Native
Americans
are
defined
in
§
33.103
to
include
American
Indians,
Eskimos,
Aleuts
and
Native
Hawaiians.
A
Native
American
(
either
as
an
individual,
organization,
corporation,
Tribe
or
Tribal
Government)
recipient
or
prime
contractor
must
follow
the
six
good
faith
efforts
only
if
doing
so
would
not
conflict
with
existing
Tribal
or
Federal
law,
including
but
not
limited
to
the
Indian
Self­
Determination
and
Education
Assistance
Act
(
25
U.
S.
C.
450e)
which
establishes,
among
other
things,
that
any
federal
contract,
subcontract,
grant,
or
subgrant
awarded
to
Indian
organizations
or
for
the
benefit
of
Indians,
shall
require
preference
in
the
award
of
subcontracts
and
subgrants
to
Indian
organizations
and
to
Indianowned
economic
enterprises.
Indian
organizations
awarded
an
EPA
financial
assistance
agreement
have
the
ability
to
solicit
and
recruit
Indian
organizations
and
Indian­
owned
economic
enterprises
and
give
them
preference
in
the
award
process
prior
to
undertaking
the
six
good
faith
efforts.
Tribal
governments
with
promulgated
tribal
laws
and
regulations
concerning
the
solicitation
and
recruitment
of
Native
American­
owned
and
other
minority
business
enterprises,
including
women­
owned
business
enterprises,
have
the
discretion
to
utilize
these
tribal
laws
and
regulations
in
lieu
of
the
six
good
faith
efforts.
If
the
effort
to
recruit
Indian
organizations
and
Indian­
owned
economic
enterprises
is
not
successful,
then
the
recipient
must
follow
the
six
good
faith
efforts.
Such
tribal
governments
still
must
retain
records
documenting
compliance
in
accordance
with
§
33.501
of
the
Rule
and
must
report
to
EPA
on
their
accomplishments
in
accordance
with
§
33.502
of
the
Rule.
Any
recipient,
whether
Native
American
or
not,
of
an
EPA
financial
assistance
agreement
for
the
benefit
of
Native
Americans,
is
required
to
solicit
and
recruit
Indian
organizations
and
Indian­
owned
economic
enterprises
and
give
them
preference
in
the
award
process
prior
to
undertaking
the
six
good
faith
efforts.
If
the
efforts
to
recruit
Indian
organizations
and
Indian­
owned
economic
enterprises
is
not
successful,
then
the
recipient
must
follow
the
six
good
faith
efforts.
Subpart
D
 
Fair
Share
Objectives
Section
33.401
What
Does
This
Subpart
Require?
EPA's
previous
fair
share
policy
has
required
that
fair
share
objectives
for
MBEs
and
WBEs
be
negotiated
with
EPA
financial
assistance
recipients,
but
has
not
required
that
fair
share
objectives
be
established
for
other
types
of
DBEs.
While
good
faith
efforts
have
been
required
with
respect
to
all
DBEs,
including
LSAFs,
SBEs
and
SBRAs,
numerical
fair
share
objectives
need
only
be
negotiated
for
MBEs
and
WBEs
in
accordance
with
EPA's
8%
and
10%
statutes.
This
proposed
rule
would
continue
this
policy.
EPA's
position
reflects
the
requirement
of
its
8%
and
10%
statutes
and
is
consistent
with
Executive
Order
12138
(
May
18,
1979),
which
requires
all
Federal
agencies
to
take
``
appropriate
affirmative
action
in
support
of
[
WBEs].''
Further,
OMB
Circular
A
 
102
(
March
3,
1988)
provides
that
``[
i]
t
is
national
policy
to
award
a
fair
share
of
contracts
to
small
and
minority
business
firms:
and
that
``[
g]
rantees
shall
take
similar
appropriate
affirmative
action
*
*
*
[
in]
support
of
women's
enterprises
*
*
*''
Prior
to
FY
1998,
EPA
applied
its
8%
and
10%
MBE
and
WBE
objectives
directly
to
each
of
its
financial
assistance
agreements.
Thus,
each
EPA
financial
assistance
agreement
for
research
relating
to
the
requirements
of
the
Clean
Air
Act
Amendments
of
1990
had
a
minimum
of
10%
as
MBE
and
WBE
fair
share
objectives.
All
other
EPA
financial
assistance
agreements
had
a
minimum
of
8%
as
MBE
and
WBE
fair
share
objectives.
EPA
changed
this
policy
beginning
with
its
FY
1998
financial
assistance
agreements
so
that
the
minimum
8%
and
10%
MBE
and
WBE
fair
share
objectives
became
agency­
wide
objectives
rather
than
fair
share
objectives
for
each
EPA
financial
assistance
agreement.
Notwithstanding
these
national
objectives,
fair
share
objectives
for
each
financial
assistance
agreement
recipient
are
negotiated
based
on
an
assessment
of
the
availability
of
qualified
MBEs
and
WBEs
in
the
relevant
procurement
market
for
construction,
equipment,
services
and
supplies;
thus,
the
overall
national
objectives
may
vary
from
the
specific
fair
share
objectives
of
an
individual
financial
assistance
agreement
recipient.
The
8%
and
10%
objectives
are
national
objectives
which
EPA
uses
to
evaluate
and
monitor
MBE
and
WBE
opportunities
to
participate
in
contracts
under
EPA
financial
assistance
agreements.
They
do
not
serve
as
quotas
or
set­
asides.
These
national
objectives
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/
Vol.
68,
No.
142
/
Thursday,
July
24,
2003
/
Proposed
Rules
do
not
authorize
or
require
a
recipient
to
automatically
establish
MBE
or
WBE
fair
share
objectives
at
the
8%
or
10%
levels.
The
fair
share
objectives
apply
only
to
procurement
dollars
and
not,
for
example,
to
salaries
or
other
overhead
costs.

Section
33.402
Are
There
Special
Rules
for
Loans
Under
EPA
Financial
Assistance
Agreements?
A
recipient
of
an
EPA
financial
assistance
agreement
to
capitalize
a
revolving
loan
fund
will
apply
its
fair
share
objective
(
if
the
entity
receiving
the
identified
loan
uses
a
relevant
geographic
area
that
is
substantially
similar
to
the
recipient's)
or
a
separately
negotiated
fair
share
objective
to
entities
receiving
identified
loans.
For
the
CWSRF
and
DWSRF
Programs,
identified
loans
are
those
projects
or
activities
funded
from
amounts
equal
to
the
capitalization
grant.
For
the
Brownfields
Cleanup
Revolving
Loan
Fund
(
BCRLF)
Program,
identified
loans
are
those
projects
funded
with
federal
financial
assistance.
If
procurements
will
occur
over
more
than
one
year,
the
recipient
may
choose
to
apply
the
fair
share
objective
in
place
either
for
the
year
in
which
the
identified
loan
is
awarded
or
for
the
year
in
which
the
procurement
action
occurs.
The
recipient
must
specify
this
choice
in
the
financial
assistance
agreement,
or
incorporate
it
by
reference
therein.

Section
33.403
What
Is
a
Fair
Share
Objective?
A
fair
share
objective
is
a
percentage
based
on
the
capacity
and
availability
of
qualified
MBEs,
and
WBEs
in
the
relevant
geographic
market
for
the
procurement
categories
of
construction,
equipment,
services
and
supplies
compared
to
the
number
of
all
qualified
entities
in
the
same
market
for
the
same
procurement
categories
adjusted,
if
possible,
to
reflect
the
level
of
MBE
and
WBE
participation
absent
the
effects
of
past
discrimination
in
the
marketplace.
A
fair
share
objective
is
not
a
quota.
A
recipient
and
its
prime
contractor
must
make
the
good
faith
efforts
described
in
Subpart
C
of
this
Rule
in
attempting
to
achieve
its
fair
share
objectives.

Section
33.404
When
Must
a
Recipient
Negotiate
Fair
Share
Objectives
With
EPA?
This
Rule
requires
a
recipient
to
submit
its
proposed
fair
share
objectives
and
supporting
documentation
to
the
Agency
within
90
days
after
its
acceptance
of
a
financial
assistance
agreement
for
more
than
$
250,000.
In
situations
where
a
recipient
receives
several
EPA
financial
assistance
agreements
that
are
$
250,000
or
less
in
one
fiscal
year,
the
recipient
must
submit
its
proposed
fair
share
objectives
and
supporting
documentation
to
the
Agency
within
90
days
after
its
acceptance
of
the
financial
assistance
agreement
that
takes
the
recipient
over
the
$
250,000
threshold
(
see
§
33.411).
In
recent
years
EPA
has
included
time
frames
for
submission
of
proposed
fair
share
objectives
in
special
grant
conditions
for
each
financial
assistance
agreement.
EPA
is
now
incorporating
a
general
time
frame
into
this
Rule.
A
recipient
may
not
spend
any
of
its
financial
assistance
award
for
procurement
until
the
fair
share
objective
negotiation
process
has
been
completed.

Section
33.405
How
Does
a
Recipient
Determine
Its
Fair
Share
Objectives?

Starting
in
FY
1998,
EPA,
through
the
1997
Guidance
and
implementing
terms
and
conditions,
has
required
that
fair
share
objectives
for
MBEs
and
WBEs
be
based
on
the
availability
of
qualified
MBEs
and
WBEs
in
the
relevant
market
for
the
four
procurement
categories
of
construction,
equipment,
services
and
supplies.
In
this
proposed
regulation,
EPA
is
also
offering
recipients
the
option
of
combining
the
four
proposed
procurement
category
objectives
for
MBEs
into
a
single
weighted
objective.
The
same
option
would
be
available
for
WBEs.
In
this
proposed
regulation,
EPA
is
continuing
to
allow
recipients
to
establish
separate
MBE
and
WBE
fair
share
objectives
for
different
EPA
financial
assistance
programs
and
to
establish
separate
MBE
and
WBE
fair
share
objectives
by
geographic
area.
Beginning
with
MBE
and
WBE
objectives
for
FY
1999,
the
Agency
required
that
fair
share
negotiations
be
supported
by
an
availability
analysis,
or
at
the
recipient's
option,
a
disparity
study
conducted
within
the
past
ten
years.
In
this
rulemaking,
EPA
is
proposing
to
keep
this
basic
approach,
with
some
fine
tuning.
The
recipient
would
have
to
consider
whether
an
adjustment
from
the
availability
analysis
or
disparity
study
percentage
is
needed
based
on
past
MBE
or
WBE
achievements,
other
disparity
studies
done
within
the
recipient's
jurisdiction
or
other
types
of
relevant
available
data
(
e.
g.,
statistical
disparities
in
the
ability
of
MBEs
and
WBEs
to
obtain
financing,
bonding
and
insurance
required
to
participate
in
the
DBE
Program).
This
process
is
needed
to
ensure
that
objectives
accurately
reflect
the
MBE
and
WBE
participation
expected
absent
the
effects
of
discrimination.
Recognizing
that
EPA
makes
many
different
types
of
financial
assistance
awards
(
e.
g.,
Superfund
awards
for
Hazardous
Waste
Cleanup,
CWSRF
capitalization
grants)
to
a
wide
variety
of
recipients,
EPA
is
also
soliciting
comments
to
help
us
determine
how
best
to
achieve
a
``
level
playing
field''
for
MBEs
and
WBEs.
EPA
is
specifically
asking
for
comments
on
whether
recipients
should
be
able
to
choose
from
a
variety
of
methods
in
calculating
MBE
and
WBE
fair
share
objectives
with
the
Agency.
This
process
is
intended
to
provide
maximum
flexibility
for
recipients
while
ensuring
that
objectives
are
based,
at
a
minimum,
on
the
capacity
and
availability
of
qualified
MBEs
and
WBEs
in
the
recipient's
relevant
market.
A
recipient
may
negotiate
separate
MBE
and
WBE
fair
share
objectives
applicable
to
different
geographic
markets,
and
must
use
the
fair
share
objectives
for
the
geographic
markets
in
which
the
contract
work
for
its
project
is
being
performed.

(
1)
Step
1:
Determining
a
Base
Figure
for
the
MBE
and
WBE
Objectives
A
recipient
may
determine
a
base
figure
by
preparing
an
availability
analysis.
An
availability
analysis
represents
an
actual
measurement
by
the
recipient
of
the
availability
of
MBEs
and
WBEs
in
the
relevant
geographic
market
in
the
four
procurement
categories
compared
to
the
number
of
all
businesses
in
the
same
market
that
perform
work
in
the
same
procurement
categories.
From
these
data
the
recipient
would
derive
a
base
figure
that
is
as
accurate
a
representation
as
possible
of
the
percentage
of
qualified
MBEs
and
WBEs
available
versus
the
total
number
of
available
businesses.
EPA
is
not
specifying
a
methodology
or
formula
for
a
recipient
to
use
in
preparing
its
availability
analysis.
Instead,
the
Agency
is
proposing
to
place
primary
emphasis
on
the
principles
underlying
the
measurement,
requiring
only
that
a
measurement
of
the
availability
be
made
on
the
basis
of
demonstrable
evidence
of
relevant
market
conditions.
EPA
is
providing
a
number
of
examples
which
recipients
may
adopt
or
use
as
guidelines
for
deriving
their
own
availability
analysis.

(
A)
MBE/
WBE
Directories
and
Census
Bureau
Data
The
first
example
is
setting
an
MBE
base
figure
using
a
recipient's
own
MBE
directories,
including
the
bidders
list
required
by
§
33.501.
For
each
procurement
category,
the
recipient
would
first
tabulate
the
number
of
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/
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24,
2003
/
Proposed
Rules
qualified
MBEs,
with
the
resulting
number
becoming
the
numerator
of
the
base
figure.
The
denominator
could
then
be
derived
from
the
Census
Bureau's
County
Business
Pattern
(
CBP)
Database.
The
CBP
Database
contains
all
available
businesses
in
the
recipient's
relevant
geographic
market
organized
by
Standard
Industrial
Code
(
SIC
code).
SIC
codes
have
been
converted
to
North
American
Industrial
Classification
System
(
NAICS)
codes.
For
purposes
of
the
following
discussion,
NAICS
codes
may
be
substituted
for
SIC
codes.
The
recipient
may
then
combine
all
available
businesses
pertaining
to
construction,
for
example,
and
use
this
number
as
the
denominator
in
the
base
figure
for
that
particular
procurement
category.
EPA
has
a
link
to
the
Census
Bureau's
website
at
osdbuweb.
dot.
gov/
business/
dbe/
abe.
pdf.
Utilizing
this
data,
recipients
would
be
able
to
customize
their
base
figure
within
each
procurement
category.
For
example,
major
construction
SIC
codes
are
15,
16
and
17.
If
a
recipient
estimates
it
will
spend
10%
of
its
federal
funds
within
SIC
code
15,
40%
in
SIC
code
16,
25%
in
SIC
code
17,
and
the
remaining
25%
on
contracting
spread
over
SIC
codes
35
(
equipment)
and
87
(
services),
the
recipient
could
separately
determine
the
availability
of
MBEs
for
each
of
the
SIC
codes
and
weight
each
according
to
the
amount
of
money
to
be
spent
in
each
area.
In
this
example,
the
recipient
could
calculate
its
weighted
base
figure
by
first
determining
the
number
of
MBEs
in
its
directory
for
each
of
the
SIC
codes,
then
extracting
the
availability
of
CBP
businesses
for
the
same
SIC
codes.
The
recipient
would
then
perform
the
following
calculation
to
arrive
at
a
base
figure
for
step
one
of
the
objective
setting
process
for
MBEs.
Numerator
=
[.
10
(
MBEs
in
SIC
code
15)
+
.40(
MBEs
in
SIC
code
16)
+
.25(
MBEs
in
SIC
code
17)
+
.25(
MBEs
in
SIC
codes
35
&
87)
]
×
100
Denominator
=
CBPs
in
SIC
code
15
+
CBPs
in
SIC
code
16
+
CBPs
in
SIC
code
17
+
CBPs
in
SIC
codes
35
&
87
Base
Figur
Deno
ator
e
=
Numerator
min
This
formula
is
offered
only
as
an
example
of
how
a
recipient
could
choose
to
use
the
CBP
Database.
Recipients
using
the
CBP
data
could
choose
whether
to
weight
their
calculation,
and
whether
to
do
so
by
individual
SIC
codes
or
by
groups
of
SIC
codes,
based
on
their
own
assessment
of
which
method
will
best
fit
their
spending
patterns.
EPA
is
proposing
to
allow
a
recipient
to
negotiate
separate
MBE
and
separate
WBE
fair
share
objectives
for
each
of
the
four
procurement
categories
of
construction,
equipment,
services
and
supplies
or,
at
its
option,
negotiate
a
combined
weighted
objective
for
these
four
procurement
category
objectives
for
MBEs
and
separately
for
WBEs.
This
proposed
approach
would
give
recipients
flexibility
in
preparing
their
availability
analyses.
Several
issues
arise
when
comparing
numbers
from
two
different
data
sources.
First,
recipients
will
need
to
ensure
that
the
scope
of
businesses
included
in
the
numerator
is
as
close
as
possible
to
the
scope
included
in
the
denominator.
A
recipient
using
its
own
MBE
and
WBE
directories
will
still
need
to
determine
a
similar
scope
for
the
fields
it
will
use
for
the
denominator.
A
good
way
for
a
recipient
to
do
this
would
be
to
examine
its
contracting
program
and
determine
the
SIC
codes
for
the
majority
of
its
contracts.
While
it
may
be
sufficient
for
some
recipients
to
use
their
State
borders
as
the
boundaries
for
their
relevant
geographic
market,
this
may
not
be
appropriate
for
other
recipients
whose
relevant
geographic
market
may
extend
beyond
their
State
borders.
Conversely,
the
relevant
geographic
market
for
some
recipients
may
be
a
specific
region
within
a
State's
borders.
An
alternative
means
of
calculating
the
numerator
is
to
use
a
bidders
list.
Under
this
approach
the
recipient
would
measure
availability
by
the
number
of
firms
that
have
previously
competed
in
the
recipient's
procurement
process.
The
recipient
must
include
all
firms
that
have
competed
for
prime
and/
or
subcontracts.
In
the
category
of
construction,
most
MBE
and
WBE
participation
occurs
through
subcontracting.
It
is
therefore
crucial
that
all
firms
competing
for
subcontracts
be
included
in
the
bidders
list.
EPA
encourages
recipients
to
use
any
sources
of
local
data
which
allows
them
to
make
a
more
accurate
calculation.

(
B)
Data
From
a
Disparity
Study
Another
option
for
a
recipient
in
determining
a
base
figure
is
using
a
disparity
study.
Disparity
studies
involve
comparing
available
MBE
and
WBE
contractors
with
the
contracts
actually
awarded
to
them.
They
generally
are
based
on
statistics
which
measure
MBE
and
WBE
utilization
and
anecdotal
evidence
showing
that
the
underutilization
of
MBEs
and
WBEs
is
caused
by
conditions
other
than
chance.
These
studies
may
be
expensive
and
time
consuming
to
perform.
EPA
is
not
requiring
a
recipient
to
conduct
a
disparity
study.
EPA
is
also
not
specifying
the
data
or
analysis
required
in
a
disparity
study
since
the
design
and
conduct
of
the
study
are
best
left
to
recipients
and
the
professional
organizations
with
which
they
contract
to
perform
the
studies.
If
a
disparity
study
is
used
it
must
address
MBE
and
WBE
utilization
under
the
four
procurement
categories
and
be
no
more
than
ten
years
old.
The
fact
that
a
disparity
study
utilized
in
negotiating
fair
share
objectives
has
become
more
than
ten
years
old
during
the
three
year
period
does
not
by
itself
constitute
a
significant
change
requiring
renegotiation.

(
C)
The
Objective
of
Another
EPA
Recipient
A
recipient
may
also
use
another
EPA
recipient's
MBE
and
WBE
objectives
if
they
were
established
in
accordance
with
this
Rule
and
were
based
on
a
substantially
similar
relevant
geographic
market.
For
example,
a
non­
State
agency
recipient
may
use
a
State
agency's
MBE
and
WBE
fair
share
objectives,
but
only
if
the
non­
State
agency
uses
a
substantially
similar
geographic
market.
Otherwise,
the
non­
State
Agency
recipient
would
have
to
negotiate
its
own
MBE
and
WBE
fair
share
objectives
with
EPA
based
on
the
availability
of
MBEs
and
WBEs
in
its
relevant
geographic
market.
With
the
proposed
exemption
from
the
fair
share
objective
negotiation
process,
the
number
of
recipients
who
would
be
required
to
separately
negotiate
with
EPA
would
be
substantially
reduced.

(
D)
Alternative
Methods
This
proposal
also
includes
an
option
for
recipients
to
propose
an
alternative
method
for
calculating
MBE
and
WBE
base
figures.
Recipients
may
use
this
option
to
take
advantage
of
any
unique
expertise
or
source
of
data
that
may
not
be
available
to
other
recipients,
such
as
a
comparable
objective
negotiated
with
DOT.
EPA
will
consider
any
such
proposal
that
recipients
believe
will
better
reflect
their
relevant
market
than
any
of
the
examples
provided
in
this
Rule.

Step
2:
Adjusting
the
Base
Figure
for
the
MBE
and
WBE
Objectives
Once
a
recipient
has
derived
base
figures
for
its
proposed
MBE
and
WBE
objectives,
it
must
then
consider
whether
an
adjustment
from
the
Step
1
MBE
and
WBE
base
figures
is
appropriate.
This
second
step
is
needed
to
ensure
that
objectives
more
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MATH>
43834
Federal
Register
/
Vol.
68,
No.
142
/
Thursday,
July
24,
2003
/
Proposed
Rules
accurately
reflect
the
MBE
and
WBE
participation
expected
absent
the
effects
of
discrimination.
A
recipient
should
consider
the
proven
capacity
of
MBEs
and
WBEs
to
perform
on
contracts
under
EPA
financial
assistance
agreements.
MBE
and
WBE
past
utilization
does
not
necessarily
reflect
the
availability
of
MBEs
and
WBEs.
However,
such
past
utilization
is
an
indicia
of
the
proven
capacity
of
an
MBE
or
WBE
to
perform
on
contracts
under
EPA
financial
assistance
agreements.
Other
relevant
information
which
should
be
examined,
if
available,
include
any
other
disparity
studies
conducted
within
a
recipient's
relevant
geographic
market;
statistical
disparities
in
the
ability
of
MBEs
and
WBEs
to
get
necessary
financing,
bonding
and
insurance;
and
data
on
limitations
for
employment,
self
employment,
education,
training
and
union
apprenticeship.
EPA
is
not
proposing
to
require
recipients
to
make
an
adjustment
to
their
base
figures.
Rather,
recipients
must
consider
whether
an
adjustment
to
the
base
figures
is
appropriate,
and
if
so,
make
the
adjustment.
It
is
important
to
note
that
the
data
recipients
would
consider
under
this
proposed
approach
only
involve
existing
data
and
not
the
generation
of
any
new
data.
The
question
of
allowability
of
costs
of
preparing
availability
analyses
or
disparity
studies
in
connection
with
the
DBE
Program
is
determined
in
accordance
with
the
cost
principles
applicable
to
the
organization
incurring
the
cost.
40
CFR
30.27
and
31.22.
For
State
and
local
governments,
the
pertinent
cost
principles
are
found
in
OMB
Circular
A
 
87,
as
amended
8/
29/
97
(``
A
 
87'').
For
institutions
of
higher
education
and
other
non­
profit
institutions,
OMB
Circulars
A
 
21
and
A
 
122
apply,
respectively.
Allowability
of
costs
for
hospitals
is
determined
in
accordance
with
the
provision
of
appendix
E
of
45
CFR
Part
74.
In
general,
the
cost
must
be
necessary
and
reasonable,
be
allocable
to
the
Federal
grant,
be
consistent
with
State
law
and
be
afforded
consistent
treatment
as
direct
or
indirect.
The
cost
must
be
adequately
documented,
and
be
the
net
of
any
applicable
credits.
There
is
nothing
inherent
in
the
cost
principles
that
would
render
the
DBE
costs
unallowable.
Each
recipient
will
have
different
fact
situations
to
apply.
In
CERCLA
Core
Program
Cooperative
Agreements,
costs
incurred
in
encouraging
DBE
utilization
in
the
Superfund
Program
are
allowable
for
funding.
The
recipient
may
have
conducted
an
analysis
or
study
for
its
own
purposes
prior
to
the
EPA
financial
assistance
agreement,
in
which
case
some
of
the
costs
might
be
allocable
to
the
EPA
grant
as
an
in­
kind
contribution.
Costs
must
also
be
treated
consistently
as
either
direct
or
indirect
in
similar
circumstances.
Under
OMB
cost
principles
the
costs
of
such
analyses
or
studies
could
either
be
allowable
direct
or
allowable
indirect
costs
under
an
EPA
assistance
award.
The
recipient
must
determine
whether
under
its
particular
circumstances,
the
DBE
costs
are
allocable
to
the
cost
objective
in
question,
and
whether
it
is
a
direct
or
indirect
cost.
In
each
case,
the
recipient
will
have
to
devise
a
method
of
allocating
the
cost
of
the
analysis
or
study
appropriately.
If
audited,
the
recipient
may
be
asked
to
document
and
justify
the
allocation.
If
a
recipient
has
questions
concerning
allocation
issues,
it
should
contact
its
appropriate
EPA
grants
administration
office.

Section
33.406
May
a
Recipient
Designate
a
Lead
Agency
for
Fair
Share
Objective
Negotiation
Purposes?
If
an
Indian
Tribal,
State
or
local
Government
has
more
than
one
agency
that
receives
EPA
financial
assistance,
the
agencies
within
that
government
may
designate
a
lead
agency
to
negotiate
MBE
and
WBE
fair
share
objectives
with
EPA
to
be
used
by
each
of
the
agencies.
Each
agency
must
otherwise
negotiate
with
EPA
separately
its
own
MBE
and
WBE
fair
share
objectives.

Section
33.407
How
Long
Do
MBE
and
WBE
Fair
Share
Objectives
Remain
in
Effect?
Once
approved,
a
recipient's
MBE
and
WBE
fair
share
objectives
would
remain
in
effect
for
three
fiscal
years.
However,
if
significant
changes
have
occurred
rendering
the
data
relied
upon
in
establishing
the
fair
share
objectives
obsolete,
the
fair
share
objectives
may
need
to
be
renegotiated
before
the
end
of
the
three
fiscal
year
period.
The
fact
that
a
disparity
study
utilized
in
negotiating
fair
share
objectives
has
become
more
than
ten
years
old
during
the
three
year
period
does
not
by
itself
constitute
a
significant
change
requiring
renegotiation.

Section
33.408
May
a
Recipient
Use
Race
and/
or
Gender
Conscious
Measures
as
Part
of
This
Program?
To
the
extent
good
faith
efforts
described
in
Subpart
C
of
this
Rule
and
other
race
and/
or
gender
neutral
efforts
prove
to
be
adequate
to
achieve
fair
share
objectives
for
MBEs
and
WBEs,
a
recipient
or
prime
contractor
need
not
take
any
race
and/
or
gender
conscious
action.
To
the
extent
good
faith
efforts
described
in
Subpart
C
of
this
Rule
and
other
race
and/
or
gender
neutral
efforts
prove
to
be
inadequate
to
achieve
fair
share
objectives
for
MBEs
and
WBEs,
a
recipient
or
prime
contractor
is
encouraged
to
take
reasonable
race
and/
or
gender
conscious
action,
subject
to
§
33.409,
to
more
closely
achieve
the
fair
share
objectives.
Such
actions
may
include,
among
other
things,
price
incentives
and
technical
evaluation
credits.
Any
use
of
race
and/
or
gender
conscious
measures
must
not
result
in
the
selection
of
an
unqualified
MBE
or
WBE.
A
recipient
must
notify
EPA
in
advance
of
any
race
and/
or
gender
conscious
action
it
plans
to
take.

Section
33.409
May
a
Recipient
Use
Quotas
as
Part
of
This
Program?
Quotas
may
never
be
used
under
EPA's
8%
or
10%
statute.
In
fact,
EPA's
10%
statute
specifically
prohibits
quotas.

Section
33.410
May
a
Recipient
Be
Penalized
for
Failing
To
Meet
Its
Fair
Share
Objectives?
Under
this
Rule,
a
recipient
may
not
be
penalized
or
considered
to
be
in
noncompliance
solely
because
its
MBE
or
WBE
utilization
falls
short
of
its
fair
share
objectives.
However,
EPA
may
take
remedial
action
under
§
33.105
for
a
recipient's
failure
to
administer
any
portion
of
the
DBE
Program
including,
but
not
limited
to,
the
good
faith
efforts
requirements
described
in
Subpart
C
of
this
part.

Section
33.411
Who
May
be
Exempted
From
This
Subpart?
EPA
is
proposing
to
exempt
recipients
of
financial
assistance
agreements
with
a
combined
total
of
$
250,000
or
less
in
EPA
funds
for
any
particular
EPA
financial
assistance
project
or
in
any
one
fiscal
year
from
the
fair
share
objective
requirements.
These
recipients
would
not
be
exempted
from
the
six
good
faith
efforts
requirements
of
Subpart
C
or
the
recordkeeping
and
reporting
requirements
of
Subpart
E.
The
Agency
is
requesting
comments
on
whether
the
exemption
should
be
extended
to
the
other
requirements.
Commenters
are
encouraged
to
submit
relevant
burden
and/
or
cost
information
in
support
of
extending
the
exemption
to
the
other
requirements
of
this
Rule.
Financial
assistance
agreements
of
$
250,000
or
less
account
for
about
82%
of
new
EPA
financial
assistance
awards
each
fiscal
year,
but
less
than
12%
of
the
total
EPA
financial
assistance
funds
awarded.
For
the
Clean
Water
State
Revolving
Fund
(
CWSRF),
Drinking
Water
State
Revolving
Fund
(
DWSRF),
and
Brownfields
Cleanup
Revolving
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Proposed
Rules
Loan
Fund
(
BCRLF)
Programs,
recipients
are
not
required
to
apply
the
fair
share
objective
requirements
to
an
entity
receiving
an
identified
loan
in
the
amount
of
$
250,000
or
less
or
to
an
entity
receiving
a
combination
of
loans
totaling
in
the
amount
of
$
250,000
or
less
in
any
one
fiscal
year.
These
exemptions
are
designed
to
minimize
administrative
burdens
on
EPA
recipients.
Recipients
exempted
by
this
provision
are
not
exempted
from
the
other
requirements
of
the
rule.
The
Agency
is
requesting
comment,
including
comments
from
Tribes,
on
whether
the
exemptions
should
apply
to
other
requirements,
specifically
the
good
faith
efforts
and
reporting
requirements.
Commenters
are
encouraged
to
submit
relevant
burden
and/
or
cost
information
in
support
of
their
comments
to
extend
the
exemption
to
other
requirements
of
this
Rule,
including
the
good
faith
efforts
and
reporting
requirements.
EPA
is
proposing
to
exempt
Tribal
and
tribal
consortia
recipients
from
applying
the
fair
share
objective
requirements
to
eligible
program
grants
which
can
be
included
in
Performance
Partnership
Grants
(
PPGs)
under
40
CFR
Part
35,
Subpart
B,
due
to
the
nature
of
these
program
grants
and
the
unique
nature
of
eligible
recipients.
Finally,
a
recipient
of
a
Technical
Assistance
Grant
(
TAG)
would
not
be
required
to
apply
the
fair
share
objective
requirements
of
this
Subpart
to
that
grant.
This
provision
would
not,
however,
exempt
such
recipients
from
any
other
requirements
of
this
Part.

Section
33.412
Is
There
a
Special
Rule
for
an
Insular
Area
or
Indian
Tribal
Government
Recipient?
Currently,
Insular
Area
and
Indian
Tribal
Government
recipients
are
not
required
to
negotiate
fair
share
objectives
with
EPA.
For
the
most
part,
EPA
is
proposing
to
treat
Insular
Area
and
Indian
Tribal
Government
recipients
the
same
as
other
recipients
with
regard
to
the
fair
share
objective
negotiation
requirements.
For
example,
the
fair
share
objectives
of
another
recipient
may
be
used
so
long
as
the
relevant
geographic
market
is
the
same
or
substantially
similar.
The
impact
of
this
change
on
Indian
Tribal
Government
recipients
would
be
minimized
by
the
general
exemption
described
in
§
33.411(
a).
The
impact
is
further
minimized
in
the
case
of
tribes
and
tribal
consortia
by
the
exemption
for
eligible
program
grants
which
can
be
included
in
Performance
Partnership
Grants
(
PPGs)
under
40
CFR
Part
35,
Subpart
B,
described
in
§
33.411(
c).
As
with
other
recipients,
fair
share
objectives
would
remain
in
effect
for
three
years.
EPA
is
proposing
to
phase­
in
the
MBE
and
WBE
fair
share
objective
negotiation
process
for
Insular
Area
and
Indian
Tribal
Government
recipients
over
three
years
in
order
for
such
recipients
to
adjust
to
this
change
in
policy.
The
Agency
will
develop
guidance
on
what
specific
factors
should
be
taken
into
account
in
determining
the
phase­
in
period
for
these
recipients.
In
the
interim,
such
recipients
must
still
comply
with
all
other
requirements
of
this
Rule.

Subpart
E
 
Recordkeeping
and
Reporting
Section
33.501
What
Are
the
Recordkeeping
Requirements
of
This
Part?
A
recipient
is
required
to
maintain
the
records
documenting
its
compliance
with
the
requirements
of
this
Part,
including
documentation
of
its
and
its
prime
contractor's
good
faith
efforts
and
data
relied
upon
in
formulating
its
fair
share
objectives.
A
recipient
must
also
comply
with
the
applicable
retention
and
access
requirements
for
its
financial
assistance
agreement,
e.
g.,
40
CFR
30.53
(
for
institutions
of
higher
education,
hospitals
and
other
non­
profit
organizations);
40
CFR
31.42
(
for
Indian
Tribal,
State
and
local
Government
recipients);
and
40
CFR
35.6705,
35.6710
(
for
Superfund
Response
Action
Cooperative
Agreements).
In
addition,
a
recipient
of
a
Continuing
Environmental
Program
Grant
(
e.
g.,
a
State)
or
other
annual
grant
would
be
required
to
create
and
maintain
a
bidders
list.
Such
a
list
must
only
be
kept
until
the
grant
project
period
has
expired
and
the
recipient
is
no
longer
receiving
EPA
funding
under
the
grant.
In
addition,
a
recipient
of
an
EPA
financial
assistance
agreement
to
capitalize
a
revolving
loan
fund
also
must
require
entities
receiving
identified
loans
to
create
and
maintain
a
bidders
list
if
the
recipient
of
the
loan
is
subject
to,
or
chooses
to
follow,
competitive
bidding
requirements.
(
See
e.
g.,
40
CFR
33.303).
The
purpose
of
a
bidders
list
is
to
provide
the
recipient
and
entities
receiving
identified
loans
who
conduct
competitive
bidding
with
as
accurate
a
database
as
possible
about
the
universe
of
MBE/
WBE
and
non­
MBE/
WBE
prime
and
subcontractors.
Such
a
list
must
only
be
kept
until
the
project
period
for
the
identified
loan
has
ended.
Recipients
are
required
to
comply
with
these
recordkeeping
requirements,
even
if
they
are
exempted
by
§
33.411
from
applying
the
fair
share
objective
requirements.
The
Agency
is
requesting
comments
on
whether
the
exemption
should
be
extended
to
the
recordkeeping
requirements.
Commenters
are
encouraged
to
submit
relevant
burden
and/
or
cost
information
in
support
of
their
comment
to
extend
the
exemption
to
the
recordkeeping
requirements.

Section
33.502
What
Are
the
Reporting
Requirements
of
This
Part?
The
effectiveness
of
EPA's
DBE
Program
may
be
measured
through
its
reporting
requirements.
These
reports
measure
EPA's
progress
in
achieving
the
national
objectives
established
by
EPA's
8%
and
10%
statutes.
All
financial
assistance
agreement
recipients
must
report
on
a
quarterly
basis
except
for
recipients
of
continuing
environmental
program
grants,
and
institutions
of
higher
education,
hospitals
and
other
non­
profit
organizations
receiving
financial
assistance
awards
under
40
CFR
Part
30,
who
report
on
an
annual
basis.
Examples
of
continuing
environmental
program
grants
include
those
specified
in
40
CFR
Part
35,
Subpart
A,
as
well
as
Performance
Partnership
Grants
(
PPGs)
and
GAP
Grants
for
Indian
Tribal
governments
and
intertribal
consortia.
Recipients
of
grants
capitalizing
CWSRF
or
DWSRF
Programs
have
historically
reported
MBE/
WBE
participation
quarterly,
and
will
continue
to
do
so
under
this
rule.
Recipients
of
financial
assistance
agreements
that
capitalize
revolving
loan
programs
must
require
entities
receiving
identified
loans
to
submit
their
MBE
and
WBE
participation
reports
on
a
quarterly
basis
to
the
financial
assistance
agreement
recipient,
rather
than
to
EPA.
Private
and
non­
profit
organization
loan
recipients
are
not
required
to
maintain
a
certified
procurement
system
(
e.
g.,
see
40
CFR
35.6055(
a)).
In
the
past,
EPA
has
presumed
that
all
financial
assistance
award
funds
to
Indian
Tribal
Government
and
Insular
Area
recipients
have
benefitted
MBEs.
Accordingly,
despite
the
reporting
requirements
contained
in
40
CFR
Part
31,
as
a
matter
of
policy,
EPA
has
not
uniformly
required
Indian
Tribal
Government
and
Insular
Area
recipients
to
report
their
degree
of
MBE
or
WBE
utilization.
In
this
proposed
Subpart,
Indian
Tribal
Government
and
Insular
Area
recipients
are
treated
the
same
as
other
recipients
with
regard
to
recordkeeping
and
reporting
requirements.
All
such
recipients
would
therefore
be
required
to
retain
records
and
report
on
actual
MBE
and
WBE
utilization.
The
reporting
requirements
are
applicable
to
all
recipients,
even
those
exempted
from
applying
the
fair
share
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/
Thursday,
July
24,
2003
/
Proposed
Rules
objective
requirements.
The
Agency
is
requesting
comments
on
whether
the
exemption
should
be
extended
to
the
reporting
requirements.
Commenters
are
encouraged
to
submit
relevant
burden
and/
or
cost
information
in
support
of
their
comment
to
extend
the
exemption
to
the
reporting
requirements.

Section
33.503
How
Does
a
Recipient
Calculate
MBE
and
WBE
Participation
for
Reporting
Purposes?
In
this
rulemaking
proposal
the
Agency
is
proposing
to
codify
the
principles
of
Chapter
8
of
its
1997
Guidance
concerning
how
MBE
and
WBE
participation
is
counted.
EPA
requires
that
a
recipient
report
the
total
amount
of
financial
assistance
spent
on
procurement
and
the
amount
awarded
to
an
MBE
or
WBE.
For
EPA
assistance
awards,
except
the
CWSRF
and
DWSRF
Revolving
Funds,
all
project
expenditures
are
deemed
to
include
both
the
Federal
Share
and
the
recipient's
required
matching
share.
Therefore,
except
in
the
SRF
Programs,
the
amount
of
procurement
in
the
assistance
award
as
a
whole,
i.
e.,
including
any
required
cost
share
funds
contributed
by
the
recipient
is
reported.
In
the
SRF
Programs,
only
identified
loans
are
considered
to
include
Federal
funds.
Negative
reports
are
required,
i.
e.,
if
a
recipient
does
not
make
an
MBE
or
WBE
procurement
award
in
a
reporting
period,
the
recipient
must
still
file
a
Form
5700
 
52A.
By
requiring
recipients
to
report,
EPA
is
attempting
to
measure
the
amount
of
overall
MBE
and
WBE
participation
under
the
DBE
Program.
The
reporting
of
MBE
and
WBE
dollar
amounts
under
a
particular
prime
contract
will
result
in
a
total
that
is
no
more
than
100%
of
the
prime
contract
value.
For
example,
if
an
MBE
is
awarded
a
prime
contract
and
then
subcontracts
30%
of
the
value
of
the
contract,
the
total
number
of
dollars
reported
would
remain
at
the
100%
level.
This
would
be
true
even
if
the
subcontractor
in
this
example
is
another
MBE.
If
all
project
costs
attributable
to
MBE
and
WBE
participation
are
not
eligible
for
funding
under
the
EPA
financial
assistance
agreement,
the
recipient
may
report
MBE
and
WBE
participation
compared
to
the
total
eligible
and
noneligible
costs
of
the
project.
Joint
Ventures.
The
MBE
and
WBE
participation
within
a
joint
venture
shall
be
credited
in
a
pro
rata
fashion.
Where
an
MBE's
or
WBE's
risk
of
loss,
control
or
management
responsibilities
is
not
consistent
with
its
share
of
the
profit,
the
award
official
may
direct
an
adjustment
in
the
percentage
of
MBE
or
WBE
participation.
Central
Purchasing
or
Procurement
Centers.
Recipients
must
verify
procurement
dollars
awarded
to
MBE
and
WBE
firms
from
a
recipient's
central
purchasing
or
procurement
center.
In
reporting
MBE
and
WBE
utilization,
a
recipient
may
use
one
of
the
methods
described
below
or
propose
another
method
for
approval
by
EPA.
(
1)
A
recipient
may
report
actual
dollars
expended
on
procurement
from
EPA
financial
assistance
agreement
funds
to
MBEs
and
WBEs,
if
sufficient
records
are
maintained;
(
2)
If
records
are
maintained
for
a
recipient's
MBE
and
WBE
procurement
generally
but
records
are
not
specifically
maintained
for
procurement
under
EPA
financial
assistance
agreements,
a
recipient's
MBE
and
WBE
percentage
utilization
for
its
funds
as
a
whole
may
be
applied
proportionally
to
the
amount
of
procurement
under
EPA
financial
assistance
agreements;
or
(
3)
If
actual
records
of
MBE
and
WBE
utilization
are
not
maintained,
a
recipient
may
authorize
its
procurement
center
to
estimate
the
total
amount
of
funds
awarded
to
MBEs
and
WBEs.
Such
estimate,
provided
it
is
reasonable,
will
be
accepted.
Brokers.
MBE
and
WBE
participation
will
be
credited
for
those
MBEs
and
WBEs
performing
a
useful
business
function
according
to
industry
custom
and
practice.
Recipients
may
not
count
expenditures
to
an
MBE
or
WBE
that
acts
merely
as
a
broker
or
passive
conduit
in
a
transaction.
A
broker
is
a
firm
that
does
not
itself
perform,
manage
or
supervise
the
work
of
its
contract
or
subcontract
in
a
manner
consistent
with
the
normal
business
practices
for
contractors
or
subcontractors
in
its
line
of
business.
However,
an
MBE
or
WBE
may
subcontract
a
portion
of
the
work
to
a
non­
MBE
or
non­
WBE,
provided
that
such
further
subcontracting
is
in
accordance
with
this
proposed
regulation
and
that
the
majority
of
work
is
retained
by
the
MBE
or
WBE
having
the
prime
contract.
Presumption.
If
an
MBE
or
WBE
prime
contractor
awards
50%
or
more
of
the
prime
contract
value
to
a
non­
MBE
and
non­
WBE,
EPA
presumes
that
such
a
MBE
or
WBE
prime
contractor
is
a
broker.
No
MBE
or
WBE
utilization
may
be
reported
for
a
broker.
Rebuttal.
An
MBE
or
WBE
contractor
may
rebut
this
presumption
by
demonstrating
that
the
degree
of
subcontracting
is
consistent
with
normal
business
practice
and
that
it
will
actively
perform,
manage
and
supervise
the
work
under
its
contract.
MBE
or
WBE
Truckers/
Haulers.
A
recipient
may
only
count
expenditures
to
an
MBE
or
WBE
Trucker/
Hauler
if
that
MBE
or
WBE
Trucker/
Hauler
is
performing
a
commercially
useful
function.
The
proposed
rule
discusses
two
factors
to
consider
in
determining
whether
an
MBE
or
WBE
Trucker/
Hauler
is
performing
a
commercially
useful
function.

III.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
Under
Executive
Order
12866
(
58
FR
51735,
October
4,
1993),
EPA
must
determine
whether
the
regulatory
action
is
``
significant''
and
therefore
subject
to
review
by
the
Office
of
Management
and
Budget
(
OMB).
The
Executive
Order
defines
``
significant
regulatory
action''
as
one
that
is
likely
to
result
in
a
rule
that
may:
(
1)
Have
an
annual
effect
on
the
economy
of
$
100
million
or
more
or
adversely
affect
in
a
material
way
the
economy,
a
sector
of
the
economy,
productivity,
competition,
jobs,
the
environment,
public
health
or
safety,
or
tribal,
State
or
local
governments
or
communities.
(
2)
Create
a
serious
inconsistency
or
otherwise
interfere
with
an
action
taken
or
planned
by
another
agency.
(
3)
Materially
alter
the
budgetary
impact
of
entitlements,
grants,
user
fees,
or
programs,
or
the
rights
and
obligations
of
recipients
thereof.
(
4)
Raise
novel
legal
or
policy
issues
arising
out
of
legal
mandates,
the
President's
priorities,
or
the
principles
set
forth
in
the
Executive
Order.
This
rule
is
a
significant
rule
under
Executive
Order
12866
because
of
the
substantial
public
interest
concerning
and
policy
importance
of
programs
to
ensure
nondiscrimination
in
Federally
assisted
contracting.
It
also
affects
a
wide
variety
of
parties,
including
all
EPA
financial
assistance
programs,
and
the
DBE
and
non­
DBE
contractors
that
perform
work
under
them.
As
such,
this
action
was
submitted
to
OMB
for
review.
Changes
made
in
response
to
OMB
suggestions
or
recommendations
will
be
documented
in
the
public
record.
Based
on
currently
available
information
about
costs
that
may
be
associated
with
complying
with
this
rule
(
e.
g.,
costs
to
obtain
MBE
or
WBE
certification),
EPA
believes
that
this
rule
will
not
have
an
annual
effect
on
the
economy
of
$
100
million
or
more.
Therefore,
EPA
does
not
plan
to
prepare
a
regulatory
impact
statement
for
this
rule.
However,
EPA
invites
commentors
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Federal
Register
/
Vol.
68,
No.
142
/
Thursday,
July
24,
2003
/
Proposed
Rules
to
furnish
information
on
the
economic
costs,
impacts
and
distributional
effects
of
this
proposed
rule,
after
which
the
agency
may
reconsider
its
position.

B.
Paperwork
Reduction
Act
The
information
collection
requirements
in
this
proposed
rule
have
been
submitted
for
approval
to
the
Office
of
Management
and
Budget
(
OMB)
under
the
Paperwork
Reduction
Act,
44
U.
S.
C.
3501
et
seq.
The
Information
Collection
Request
(
ICR)
document
prepared
by
EPA
has
been
assigned
ICR
No
 
2047.01.
This
ICR
is
for
the
purpose
of
ensuring
that
EPA's
statutory
DBE
procurement
goal
requirements
are
implemented
in
harmony
with
the
United
States
Supreme
Court's
decision
in
Adarand
Constructors,
Inc.
v.
Pena,
115
S.
Ct.
2097
(
1995).
The
requirements
to
complete
EPA
Forms
6100
 
2
 
DBE
Program
Subcontractor
Participation
Form,
6100
 
3
 
DBE
Program
Subcontractor
Performance
Form,
and
6100
 
4
 
DBE
Program
Subcontractor
Utilization
Form,
are
intended
to
prevent
any
``
bait
and
switch''
tactics
at
the
subcontract
level
by
prime
contractors
which
may
circumvent
the
spirit
of
the
DBE
Program.
The
requirements
to
complete
the
EPA
DBE
Certification
Application
(
EPA
Form
6100
 
1a)
(
Sole
Proprietorship),
the
EPA
DBE
Certification
Application
(
EPA
Form
6100
 
1b)
(
Limited
Liability
Company),
the
EPA
DBE
Certification
Application
(
EPA
6100
 
1c)
(
Partnerships),
the
EPA
DBE
Certification
Application
(
EPA
Form
6100
 
1d)
(
Corporations),
the
EPA
DBE
Certification
Application
(
EPA
Form
6100
 
1e)
(
Alaska
Native
Corporations),
the
EPA
DBE
Certification
Application
(
EPA
Form
6100
 
1f)
(
Tribally
Owned
Businesses),
the
EPA
DBE
Certification
Application
(
EPA
Form
6100
 
1g)
(
Private
and
Voluntary
Organizations),
the
EPA
DBE
Certification
Application
(
EPA
Form
6100
 
1h)
(
Concerns
owned
by
Native
Hawaiian
Organizations),
and
the
EPA
DBE
Certification
Application
(
EPA
Form
6100
 
1i)
(
Concerns
Owned
by
Community
Development
Corporations),
as
applicable,
would
be
required
to
be
completed
by
an
entity
seeking
to
be
counted
as
a
minority
business
enterprise
(
MBE)
or
women's
business
enterprise
(
WBE)
under
EPA's
DBE
Program,
which
cannot
get
certified
as
an
MBE
or
WBE
by
the
SBA
or
DOT
under
their
respective
programs
or
by
an
Indian
Tribal
Government
or
independent
private
organization
consistent
with
EPA's
8%
or
10%
statute
as
applicable.
Responses
to
the
collection
of
information
will
be
mandatory.
EPA's
legal
authorities
for
the
DBE
Program
are
Public
Law
102
 
389,
a
1993
appropriations
act
(
42
U.
S.
C.
4370d)
(
EPA's
8%
statute),
and
Public
Law
101
 
549,
Title
X
of
the
Clean
Air
Act
Amendments
of
1990
(
42
U.
S.
C.
7601
note)
(
EPA's
10%
statute).
Other
legal
authorities
include
Public
Law
99
 
499,
the
Superfund
Amendments
and
Reauthorization
Act
of
1986;
Public
Law
100
 
590,
the
Small
Business
Administration
Reauthorization
and
Amendment
Act
of
1988;
Executive
Order
12138,
``
Creating
a
National
Women's
Business
Enterprise
Policy
and
Prescribing
Arrangements
for
Developing,
Coordinating
and
Implementing
a
National
Program
for
Women's
Business
Enterprise,''
issued
May
18,
1979;
Executive
Order
11625,
``
Prescribing
Additional
Arrangements
for
Developing
and
Coordinating
a
National
Program
for
Minority
Business
Enterprise,''
issued
October
13,
1971;
and
Executive
Order
12432,
``
Minority
Business
Enterprise
Development,''
issued
July
14,
1983.
EPA
may
make
available
to
the
public
any
information
concerning
EPA's
DBE
Program
release
of
which
is
not
prohibited
by
Federal
law
or
regulation,
including
EPA's
Confidential
Business
Information
regulations
at
40
CFR
Part
2,
Subpart
B.
The
total
labor
burden
and
costs
to
MBEs
and
WBEs
for
certification
under
State,
Tribal
and
Insular
Area
funding
programs
is
estimated
to
total
$
8,750,300,
with
168,275
burden
hours
and
6,731
MBE
and
WBE
entities
affected
for
the
three­
year
period
of
the
ICR.
The
estimated
annual
burden
hours
per
response
is
25
hours;
the
number
of
respondents
is
estimated
at
2,244
at
an
average
annual
labor
burden
and
cost
per
MBE
and
WBE
of
$
1300.
The
average
annual
burden
and
costs
are
estimated
by
spreading
the
first
year
cost
over
the
three­
year
period
of
the
ICR,
yielding
a
total
annual
average
burden
of
56,092
hours
and
$
2,916,767
in
costs.
The
total
labor
burden
and
costs
to
all
EPA
grant
and
loan
recipients
that
would
have
to
perform
an
availability
analysis
to
meet
the
requirements
of
the
proposed
rule
and
other
paperwork
requirements
are
estimated
to
be
$
16,509,500
with
825,475
burden
hours
and
3,115
entities
affected
for
the
threeyear
period
of
the
ICR.
The
estimated
annual
burden
hours
for
all
responses
is
275,158,
and
the
annual
number
of
respondents
is
estimated
at
1,038.
The
annual
cost
for
all
respondents
would
be
$
5,503,167.
The
cost
per
respondent
is
estimated
at
$
5,250
(
each
respondent
is
estimated
to
perform
an
availability
analysis
once
every
three
years)
and
is
estimated
to
take
265
hours
at
$
20/
hour.
EPA
assumed
there
were
no
additional
start
up
costs
or
capital
expenditures.
Burden
means
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.
This
includes
the
time
needed
to
review
instructions;
develop,
acquire,
install,
and
utilize
technology
and
systems
for
the
purposes
of
collecting,
validating,
and
verifying
information,
processing
and
maintaining
information,
and
disclosing
and
providing
information;
adjust
the
existing
ways
to
comply
with
any
previously
applicable
instructions
and
requirements;
train
personnel
to
be
able
to
respond
to
a
collection
of
information;
search
data
sources;
complete
and
review
the
collection
of
information;
and
transmit
or
otherwise
disclose
the
information.
An
Agency
may
not
conduct
or
sponsor,
and
a
person
is
not
required
to
respond
to
a
collection
of
information
unless
it
displays
a
currently
valid
OMB
control
number.
The
OMB
control
numbers
for
EPA's
regulations
are
listed
in
40
CFR
Part
9
and
48
CFR
Chapter
15.
To
comment
on
the
Agency's
need
for
this
information,
the
accuracy
of
the
provided
burden
estimates,
and
any
suggested
methods
for
minimizing
respondent
burden,
including
the
use
of
automated
collection
techniques,
EPA
has
established
a
public
docket
for
this
ICR
under
Docket
ID
No.
OA
 
2002
 
0001
which
is
available
for
public
viewing
at
the
OEI
Docket
in
the
EPA
Docket
Center
(
EPA/
DC),
EPA
West
Room
B102,
1301
Constitution
Ave.,
NW.,
Washington,
DC.
The
EPA
Docket
Center
Public
Reading
Room
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,
excluding
legal
holidays.
The
telephone
number
for
the
Reading
Room
is
(
202)
566
 
1744,
and
the
telephone
number
for
the
OEI
Docket
is
(
202)
566
 
1752.
An
electronic
version
of
the
public
docket
is
available
through
EPA
Dockets
(
EDOCKET)
at
http://
www.
epa.
gov/
edocket.
Use
EDOCKET
to
submit
or
view
public
comments,
access
the
index
listing
of
the
contents
of
the
public
docket
and
to
access
those
documents
in
the
public
docket,
and
to
access
those
documents
in
the
public
docket
that
are
available
electronically.
Once
on
the
system,
select
``
search,''
then
key
in
the
docket
ID
number
identified
above.
Also,
you
can
send
comments
to
the
Office
of
Information
and
Regulatory
Affairs,
Office
of
Management
and
Budget,
725
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Federal
Register
/
Vol.
68,
No.
142
/
Thursday,
July
24,
2003
/
Proposed
Rules
17th
St.,
NW.,
Washington,
DC
20503,
Attention:
Desk
Officer
for
EPA.
Please
include
the
EPA
Docket
ID
No.
OA
 
2002
 
0001
in
any
correspondence.
Since
OMB
is
required
to
make
a
decision
concerning
the
ICR
between
30
and
60
days
after
July
24,
2003,
a
comment
to
OMB
is
best
assured
of
having
its
full
effect
if
OMB
receives
it
by
August
25,
2003.
The
final
rule
will
respond
to
any
OMB
or
public
comments
on
the
information
collection
requirements
contained
in
this
proposal.

C.
Regulatory
Flexibility
Act
(
RFA),
as
amended
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996
(
SBREFA),
5
U.
S.
C.
601
et
seq.
Today's
proposed
rule
is
not
subject
to
the
RFA,
which
generally
requires
an
agency
to
prepare
a
regulatory
flexibility
analysis
for
any
rule
that
will
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
The
RFA
applies
only
to
rules
subject
to
notice­
and­
comment
rulemaking
requirements
under
the
Administrative
Procedure
Act
(
APA)
or
any
other
statute.
As
a
grants­
related
rule,
this
rule
is
not
subject
to
the
notice
and
comment
requirements
of
the
APA,
5
U.
S.
C.
553(
a)(
1).
Nor
is
there
any
other
statute
which
requires
EPA
to
undergo
notice
and
comment
for
this
rulemaking.
Although
this
proposed
rule
is
not
subject
to
the
RFA,
EPA
nonetheless
will
assess
the
potential
of
this
rule
to
adversely
affect
small
entities,
which
include
small
businesses,
small
not
for
profit
enterprises
and
small
governmental
jurisdictions.
At
the
outset,
it
is
important
to
note
that
EPA's
DBE
Program
is
aimed
at
improving
contracting
opportunities
for
small
businesses
owned
and
controlled
by
socially
and
economically
disadvantaged
individuals,
among
others
(
e.
g.,
HBCUs,
etc.).
Accordingly,
EPA
believes
that
this
proposed
rule
would
affect
a
substantial
number
of
small
entities.
However,
if
the
proposed
exemptions
at
the
$
250,000
level
or
less
from
the
fair
share
objective
requirements
are
adopted,
EPA
believes
that
the
effect
on
small
entities,
including
small
government
jurisdictions,
would
be
minimal.
Additionally,
under
this
rulemaking
proposal,
small
entity
recipients
would
be
able
to
use
State
Agency
negotiated
MBE/
WBE
objectives
if
such
recipients
solicit
bids/
offers
from
a
substantially
similar
geographic
market
as
that
State
Agency.
Accordingly,
EPA
believes
that
the
economic
impact
of
this
rule,
if
enacted,
on
small
entities
should
be
minimal.
In
EPA's
view,
this
rule,
if
enacted,
would
not
affect
the
total
funds
or
business
opportunities
available
to
small
businesses
that
seek
to
work
in
EPA
financial
assistance
programs.
To
the
extent
that
the
provisions
in
this
rulemaking
proposal
(
e.
g.,
with
respect
to
changes
in
the
methods
used
to
set
objectives)
lead
to
different
objectives
than
those
under
EPA's
current
program
policy,
some
firms
may
gain
and
others
lose,
business.
EPA
is
unaware
of
any
data
which
would
enable
the
Agency
at
this
time
to
measure
the
distributive
effects
of
the
rulemaking
proposal
on
various
types
of
small
entities.
We
continue
to
be
interested
in
the
potential
impacts
of
this
proposed
rule
on
small
entities
and
welcome
comments
on
issues
related
to
such
impacts.

D.
Unfunded
Mandates
Reform
Act
Title
II
of
the
Unfunded
Mandates
Reform
Act
of
1995
(
UMRA),
Public
Law
104
 
4,
establishes
requirements
for
Federal
agencies
to
assess
the
effects
of
their
regulatory
actions
on
State,
local,
and
tribal
governments
and
the
private
sector.
Under
section
202
of
the
UMRA,
EPA
generally
must
prepare
a
written
statement,
including
a
cost­
benefit
analysis,
for
proposed
and
final
rules
with
``
Federal
mandates''
that
may
result
in
expenditures
by
State,
local,
and
tribal
governments,
in
the
aggregate,
or
to
the
private
sector
of
$
100
million
or
more
in
any
one
year.
Before
promulgating
an
EPA
rule
for
which
a
written
statement
is
needed,
section
205
of
the
UMRA
generally
requires
EPA
to
identify
and
consider
a
reasonable
number
of
regulatory
alternatives
and
adopt
the
least
costly,
most
costeffective
or
least
burdensome
alternative
that
achieves
the
objectives
of
the
rule.
The
provisions
of
section
205
do
not
apply
when
they
are
inconsistent
with
applicable
law.
Moreover,
section
205
allows
EPA
to
adopt
an
alternative
other
than
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
that
achieves
the
objectives
of
the
rule.
The
provisions
of
section
205
do
not
apply
when
they
are
inconsistent
with
applicable
law.
Morever,
section
205
allows
EPA
to
adopt
an
alternative
other
than
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
if
the
Administrator
publishes
with
the
final
rule
an
explanation
why
that
alternative
was
not
adopted.
Before
EPA
establishes
any
regulatory
requirements
that
may
significantly
or
uniquely
affect
small
governments,
including
tribal
governments,
it
must
have
developed
under
section
203
of
the
UMRA
a
small
government
agency
plan.
The
plan
must
provide
for
notifying
potentially
affected
small
governments,
enabling
officials
of
affected
small
governments
to
have
meaningful
and
timely
input
in
the
development
of
EPA
regulatory
proposals
with
significant
Federal
intergovernmental
mandates,
and
informing,
educating
and
advising
small
governments
on
compliance
with
the
regulatory
requirements.
Today's
rule
contains
no
Federal
Mandates
(
under
the
regulatory
provisions
of
Title
II
of
the
UMRA)
for
State,
local,
or
tribal
governments
or
the
private
sector.
The
UMRA
excluded
from
the
definition
of
``
Federal
intergovernmental
mandate''
duties
that
arise
from
conditions
of
federal
assistance.
Pursuant
to
section
203
of
the
UMRA,
EPA
has
also
determined
that
this
rule
contains
no
regulatory
requirements
that
might
significantly
or
uniquely
affect
small
governments.
If
the
proposed
exemptions
at
the
$
250,000
level
or
less
from
compliance
with
the
fair
share
objective
requirements
are
adopted,
EPA
believes
that
there
would
be
minimal
impacts
on
small
entities,
including
small
government
jurisdictions.
Additionally,
under
this
rulemaking
proposal,
small
entity
recipients
would
be
able
to
use
appropriate
State
Agencynegotiated
MBE/
WBE
objectives
if
such
recipients
solicit
bids/
offers
from
substantially
the
same
relevant
geographic
market
as
that
State
Agency.
Therefore,
this
rule
does
not
meet
the
threshold
test
for
application
of
Section
203
of
UMRA.

E.
Executive
Order
13132:
Federalism
Executive
Order
13132,
entitled
``
Federalism''
(
64
FR
43255,
August
10,
1999),
requires
EPA
to
develop
an
accountable
process
to
ensure
``
meaningful
and
timely
input
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
federalism
implications.''
``
Policies
that
have
federalism
implications''
is
defined
in
the
Executive
Order
to
include
regulations
that
have
``
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government.''
Under
Executive
Order
13132,
EPA
may
not
issue
a
regulation
that
has
federalism
implications,
that
imposes
substantial
direct
compliance
costs,
and
that
is
not
required
by
statute,
unless
the
Federal
government
provides
the
funds
necessary
to
pay
the
direct
compliance
costs
incurred
by
State
and
local
governments,
or
EPA
consults
with
State
and
local
officials
early
in
the
process
of
developing
the
proposed
regulation.
EPA
also
may
not
issue
a
regulation
that
has
federalism
implications
and
that
preempts
State
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Federal
Register
/
Vol.
68,
No.
142
/
Thursday,
July
24,
2003
/
Proposed
Rules
law
unless
the
Agency
consults
with
State
and
local
officials
early
in
the
process
of
developing
the
proposed
regulation.
This
rule
does
not
have
``
federalism
implications,''
as
that
phase
is
defined
in
the
Executive
Order.
It
will
not
have
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government,
as
specified
in
Executive
Order
13132.
Because
this
rule
conditions
the
use
of
federal
assistance,
it
will
not
impose
substantial
direct
compliance
costs
on
State
and
local
governments.
Thus,
the
requirements
of
section
6
of
the
Executive
Order
do
not
apply
to
this
rule.
Stakeholders,
including
representatives
from
State
government
agencies,
State
government
organizations
and
local
governments,
were
given
an
opportunity
to
comment
on
a
draft
of
the
rule
which
was
posted
on
the
Internet
for
public
comment.
Meetings
were
also
held
in
several
states
across
the
country
to
discuss
the
draft
of
the
rule
and
to
encourage
comment.
In
the
spirit
of
Executive
Order
13132,
and
consistent
with
EPA
policy
to
promote
communications
between
EPA
and
State
and
local
governments,
EPA
specifically
solicits
comment
on
this
proposed
rule
from
State
and
local
officials.

F.
Executive
Order
13175:
Consultation
and
Coordination
With
Indian
Tribal
Governments
On
November
6,
2000,
the
President
issued
Executive
Order
13175
(
65
FR
67249)
entitled,
``
Consultation
and
Coordination
with
Indian
Tribal
Governments.''
Executive
Order
13175
took
effect
on
January
6,
2001,
and
revokes
Executive
Order
13084
(
Tribal
Consultation)
as
of
that
date.
EPA
to
a
great
extent
developed
this
proposed
rule,
however,
during
the
period
when
Executive
Order
13084
was
in
effect.
Although
EPA
believes
that
it
has
fully
complied
with
the
requirements
of
Executive
Order
13175,
as
indicated
in
the
following
discussion,
EPA
will
analyze
and
ensure
full
compliance
with
the
requirements
of
Executive
Order
13175
before
promulgating
the
final
rule.
Executive
Order
13175
requires
EPA
to
develop
an
accountable
process
to
ensure
``
meaningful
and
timely
input
by
tribal
officials
in
the
development
of
regulatory
policies
that
have
tribal
implications.''
``
Policies
that
have
tribal
implications''
is
defined
in
the
Executive
Order
to
include
regulations
that
have
``
substantial
direct
effects
on
one
or
more
Indian
tribes,
on
the
relationship
between
the
Federal
government
and
the
Indian
tribes,
or
on
the
distribution
of
power
and
responsibilities
between
the
Federal
government
and
Indian
tribes.''
Under
section
5(
b)
of
Executive
Order
13175,
EPA
may
not
issue
a
regulation
that
has
tribal
implications,
that
imposes
substantial
direct
compliance
costs,
and
that
is
not
required
by
statute,
unless
the
Federal
government
provides
the
funds
necessary
to
pay
the
direct
compliance
costs
incurred
by
tribal
governments,
or
EPA
consults
with
tribal
officials
early
in
the
process
of
developing
the
proposed
regulation.
Under
section
5(
c)
of
Executive
Order
13175,
EPA
may
not
issue
a
regulation
that
has
tribal
implications
and
that
preempts
tribal
law,
unless
the
Agency
consults
with
tribal
officials
early
in
the
process
of
developing
the
proposed
regulation.
However,
today's
proposed
rulemaking
will
neither
impose
substantial
direct
compliance
costs
on
tribal
governments,
nor
preempt
tribal
law.
Thus,
the
requirements
of
section
5(
b)
and
5(
c)
of
the
Executive
Order
do
not
apply
to
this
rule.
EPA
has
concluded
that
the
proposed
rule
would
have
tribal
implications
because
it
will
have
substantial
direct
effects
on
one
or
more
Indian
tribes.
The
substantial
direct
effects
on
tribal
governments
are
as
follows:
Tribes
receiving
an
EPA
financial
assistance
agreement
of
more
than
$
250,000
for
any
single
assistance
agreement
or
of
more
than
one
financial
assistance
agreement
with
a
combined
total
of
more
than
$
250,000
in
any
one
fiscal
year
(
excluding
PPG
eligible
grants
to
tribes
and
intertribal
consortia
under
40
CFR
Part
35,
Subpart
B)
would
have
to
negotiate
fair
share
objectives
with
EPA
unless
they
choose
to
adopt
MBE
and
WBE
objectives
of
another
EPA
recipient
consistent
with
today's
proposed
rule.
Those
tribes
required
to
negotiate
fair
share
objectives
with
EPA
would
have
a
phase­
in
period
of
up
to
three
years
in
which
to
do
so;
their
fair
share
objectives
will
remain
in
effect
for
three
fiscal
years
after
they
have
been
approved
by
EPA,
unless
there
are
significant
changes
to
the
data
supporting
the
fair
share
objectives.
Some
tribally
owned
businesses
(
businesses
that
a
Federally
recognized
tribal
government
owns
or
in
which
it
has
a
majority
share)
would
not
be
eligible
to
be
counted
in
the
future
towards
meeting
the
MBE/
WBE
fair
share
objectives
if
they
do
not
meet
the
applicable
SBA
8(
a)
criteria,
e.
g.,
see
13
CFR
124.109(
b);
under
EPA's
current
requirements
such
businesses
may
self
certify
their
MBE
status.
Of
course,
tribes
may
continue
to
do
business
with
tribally
owned
or
other
companies
which
do
not
meet
the
applicable
SBA
8(
a)
criteria,
they
simply
could
not
count
such
procurements
toward
meeting
MBE/
WBE
objectives.
In
addition,
the
proposed
rule
would
have
the
following
impacts
on
tribes/
tribally
owned
businesses:
First,
a
business
owned
by
a
Federally
recognized
tribal
government
would
have
to
file
an
annual
affidavit
with
EPA
certifying
no
change
in
its
MBE
status,
pursuant
to
§
33.210
of
today's
proposed
rulemaking.
Second,
a
business
owned
by
a
Federally
recognized
tribal
government
would
have
to
be
recertified
every
three
years
as
meeting
SBA's
applicable
8(
a)
criteria
to
be
eligible
to
be
counted
in
the
future
towards
meeting
the
MBE/
WBE
fair
share
objectives,
pursuant
to
§
33.208.
Third,
a
business
owned
by
a
Federally
recognized
tribal
government,
if
it
is
not
already
certified
in
accordance
with
SBA's
applicable
8(
a)
criteria,
may
have
to
incur
costs
to
be
certified
if
there
is
no
tribal
certifier
available
and
the
other
certifying
entity
charges
for
its
services.
Fourth,
a
tribe
as
a
recipient
of
EPA
financial
assistance,
would
have
to
be
notified
in
writing
before
any
termination
of
a
DBE
subcontractor
for
convenience
is
made
by
its
prime
contractor,
pursuant
to
§
33.303(
a).
Fifth,
consistent
with
other
Federal
and
tribal
laws,
a
tribe
would
have
to
require
its
prime
contractor,
after
the
tribe
has
unsuccessfully
sought
to
apply
Indian
preference
consistent
with
the
Indian
Self­
Determination
and
Education
Assistance
Act,
to
employ
the
good
faith
efforts
described
in
§
33.301
if
a
DBE
subcontractor
fails
to
complete
work
under
a
subcontract
for
any
reason
and
the
prime
contractor
solicits
a
replacement
subcontractor,
pursuant
to
§
33.303(
b).
Sixth,
consistent
with
other
Federal
and
tribal
Laws,
a
tribe
would
have
to
require
its
prime
contractor,
after
it
has
unsuccessfully
sought
to
apply
Indian
preference
consistent
with
the
Indian
Self­
Determination
and
Education
Assistance
Act,
to
employ
the
good
faith
efforts
described
in
§
33.301
even
if
it
has
achieved
its
fair
share
objectives
under
Subpart
D
of
the
rule,
pursuant
to
§
33.303(
c).
Seventh,
a
tribe
would
have
to
require
its
prime
contractors
to
provide
EPA
Form
6100
 
2
 
DBE
Program
Subcontractor
Participation
Form,
EPA
Form
6100
 
3
 
DBE
Program
Subcontractor
Performance
Form
and
EPA
Form
6100
 
4
 
DBE
Program
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/
Thursday,
July
24,
2003
/
Proposed
Rules
Subcontractor
Utilization
Form
to
all
of
its
DBE
subcontractors,
pursuant
to
§
33.303(
e),
(
f)
and
(
g),
respectively.
Eighth,
a
tribal
recipient
that
conducts
procurements
will
have
to
create
and
maintain
a
bidders
list
in
accordance
with
§
33.501(
b).
The
purpose
of
this
list
is
to
provide
recipients
as
accurate
a
database
as
possible
about
the
universe
of
MBE/
WBE
and
non­
MBE/
WBE
prime
and
subcontractors
who
seek
to
work
on
procurements
under
EPA
financial
assistance
agreements.
The
following
information
must
be
obtained
from
all
such
prime
and
subcontractors:
(
1)
Entity
name;
(
2)
Entity
address;
(
3)
Entity's
status
as
an
MBE/
WBE.
Consistent
with
EPA
policy,
EPA
nonetheless
consulted
with
tribal
officials
and/
or
representatives
of
tribal
governments
early
in
the
process
of
developing
this
regulation
to
permit
them
to
have
meaningful
and
timely
input
into
its
development.
Because
E.
O.
Sections
5(
b)
and
5(
c)
do
not
apply,
a
Tribal
Impact
Summary
is
not
required.
EPA
nonetheless
is
including
one
in
this
preamble.
The
following
constitutes
a
Tribal
Impact
Summary
under
Executive
Order
13175:
EPA
posted
a
staff
draft
of
this
proposed
rule,
dated
June
19,
2000,
on
EPA's
internet
website.
As
part
of
its
ongoing
tribal
consultations
on
this
rule,
EPA
held
meetings
with
tribal
officials
to
discuss
the
staff
draft
rule
in
Boston,
Massachusetts
on
April
11,
2001
and
in
Seattle,
Washington
on
May
23,
2001.
EPA
held
further
formal
consultations
with
tribal
officials
to
discuss
a
draft
of
this
Rule
in
Ocean
Shores,
Washington
during
the
week
of
January
28,
2002.
By
way
of
further
background,
today's
proposed
rule
has
been
under
development
for
the
past
several
years.
EPA
invited
tribal
recipients
of
EPA
grants
and
cooperative
agreements
to
an
EPA/
State/
Tribal
Annual
Conference
held
on
February
2
 
4,
1999
in
Albuquerque,
New
Mexico.
During
this
conference,
EPA
representatives
discussed
a
number
of
issues
relating
to
the
rule
under
development
with
the
general
audience.
In
addition,
EPA
representatives
met
separately
with
tribal
officials
and/
or
representatives
to
discuss
issues
of
concern
to
tribes.
On
June
27
 
30,
2000,
the
Agency
held
its
EPA/
State/
Tribal
Annual
Conference
in
Albuquerque,
New
Mexico.
Again,
EPA
invited
tribal
recipients
of
EPA
financial
assistance
agreements
to
attend.
During
the
June,
2000
conference,
agency
representatives
discussed
in
detail
the
June
19,
2000
staff
draft
of
the
rule,
which
had
been
posted
on
EPA's
website.
EPA
solicited
comments
on
the
staff
draft
of
the
rule
from
conference
participants.
Tribal
officials
and/
or
representatives
attended
that
conference
as
well.
As
of
June
30,
2001,
EPA
has
received
a
total
of
17
written
comments
on
the
staff
draft
from
Indian
tribes.
During
the
development
of
this
rule
EPA
representatives
have
made
a
number
of
oral
presentations
to
the
Tribal
Operations
Committee
(
TOC)
on
the
rule's
progress
and
solicited
input.
The
TOC
is
comprised
of
19
national
tribal
representatives
from
the
nine
EPA
Regions
that
have
federally
recognized
tribes,
and
EPA
Senior
Management;
its
role
is
to
provide
input
into
EPA
decision
making
affecting
Indian
Country.
On
November
29,
2000,
EPA
representatives
met
with
the
TOC
at
the
EPA
Tribal
Caucus
Regional
Joint
meeting
in
Miami,
Florida
to
discuss
the
staff
draft
rule
and
to
obtain
further
tribal
input
into
the
rulemaking
process.
Starting
in
November,
2000,
EPA
invited
tribal
recipients
of
EPA
grants
and
cooperative
agreements
to
participate
in
outreach
sessions
held
in
cities
around
the
country
having
EPA
Regional
offices
in
order
to
discuss
the
staff
draft
rule.
EPA
has
further
solicited
tribal
input
into
the
rulemaking
at
meetings
with
tribal
officials/
representatives
at
the
Department
of
the
Interior
2001
Conference
on
the
Environment
hosted
by
the
Bureau
of
Indian
Affairs
on
March
13
 
15,
2001
in
Albuquerque,
New
Mexico
and
at
the
Reservation
Economic
Summit
and
American
Indian
Business
Trade
Fair
(
RES
2001)
in
Anaheim,
California,
on
March
20,
2001.
EPA
further
solicited
tribal
input
in
another
meeting
with
the
TOC
on
April
24,
2001
in
Miami,
Florida.
EPA
has
considered
tribal
concerns
and
written
comments
in
today's
rulemaking.
A
summary
of
the
nature
of
tribal
concerns
and
EPA's
initial
response
follows:
1.
In
general,
tribes
believe
they
should
be
exempt
from
the
rule.
Awards
of
Grants
and
Cooperative
Agreements
to
tribes
are
currently
governed
by
40
CFR
Part
31,
``
Uniform
Administrative
Requirements
for
Grants
and
Cooperative
Agreements
to
State
and
Local
Governments.''
These
are
government
wide
requirements
that
have
been
in
effect
since
1988.
Among
other
entities
subject
to
the
regulations
are
governments.
The
definition
of
``
Government''
in
40
CFR
31.3
includes
``*
*
*
a
federally
recognized
Indian
tribal
government.''
Many
requirements
contained
in
this
proposed
rule
are
not
new
but
rather
are
the
same
requirements
contained
in
40
CFR
Part
31,
with
which
many
tribes
already
have
been
complying.
For
example,
the
reporting
and
recordkeeping
requirements
are
already
applicable
to
Indian
tribes.
In
addition,
neither
EPA's
10%
MBE/
WBE
procurement
objective
statute
for
research
relating
to
the
requirements
of
the
Clean
Air
Act
Amendments
of
1990
nor
EPA's
statutory
8%
MBE/
WBE
procurement
objective
requirements
for
all
other
programs
contain
language
exempting
tribes
from
their
applicability.
Therefore,
EPA
proposes
that
tribes
should
not
be
exempted
from
this
rule
because
it
promotes
the
utilization
of
all
disadvantaged
entities
in
procurement
under
EPA
financial
assistance
agreements,
including
tribally
owned
businesses
and
businesses
owned
by
a
member(
s)
of
a
tribe.
2.
Trigger
for
Fair
Share
Negotiations.
The
issue
of
increasing
the
dollar
amount
of
the
trigger
requiring
compliance
with
the
fair
share
objective
requirements
and
the
corresponding
availability
analysis
was
of
special
concern
to
tribes
awarded
GAP
grants.
One
commentor
also
expressed
the
view
that
availability
analysis
preparation
requirements
should
apply
only
to
tribes
spending
90%
or
more
of
their
grants
on
outside
procurement.
Other
tribes
expressed
the
view
that
preparing
availability
analyses
is
too
costly
for
them,
especially
for
smaller
tribes.
In
response
to
concerns
raised
by
tribes,
under
today's
proposed
rulemaking,
the
trigger
requiring
compliance
with
the
fair
share
objective
requirements
has
been
increased
to
$
250,000
from
$
100,000
contained
in
the
staff
draft
of
the
rule.
Also
because
of
the
nature
of
eligible
program
grants
which
can
be
included
in
Performance
Partnership
Grants
(
PPGs)
to
tribes
under
40
CFR
Part
35,
Subpart
B,
and
the
unique
nature
of
eligible
recipients,
the
Agency
is
proposing
to
exempt
PPG
eligible
program
grants
to
tribes
under
40
CFR
Part
35,
Subpart
B
from
the
fair
share
negotiation
requirements.
Accordingly,
only
tribes
receiving
an
EPA
financial
assistance
agreement
of
more
than
$
250,000
for
any
single
assistance
agreement
or
of
more
than
one
financial
assistance
agreement
with
a
combined
total
of
more
than
$
250,000
in
any
one
fiscal
year
(
excluding
PPG
eligible
program
grants
under
40
CFR
Part
35,
Subpart
B)
would
have
to
comply
with
the
fair
share
objective
requirements.
The
Agency
believes
that
this
change
effectively
addresses
the
concerns
by
setting
a
uniform
standard
applicable
to
all
recipients,
including
tribes,
rather
than,
for
example,
setting
a
standard
based
on
amounts
spent
by
tribes
on
outside
procurement,
which
could
pose
implementation
difficulties.
EPA
believes
that
most
tribes
will
not
have
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Vol.
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No.
142
/
Thursday,
July
24,
2003
/
Proposed
Rules
to
comply
with
the
fair
share
objective
requirements
under
today's
rulemaking
because
they
will
fall
under
the
$
250,000
exemption
or
the
exemption
for
PPG
eligible
program
grants
under
40
CFR
Part
35,
Subpart
B.
Finally,
EPA
believes
that
a
number
of
tribes
which
otherwise
would
have
to
negotiate
fair
share
objectives
may
elect
instead
to
apply
the
objectives
of
another
recipient
in
accordance
with
the
requirements
of
today's
rulemaking.
In
any
case,
the
rule
would
provide
tribes
with
a
three
year
phase­
in
period
to
comply
with
the
fair
share
negotiation
requirements.
Comments
were
also
received
suggesting
that
EPA
exempt
tribes
from
Fair
Share
Negotiations
based
on
procurement
dollars,
rather
than
on
total
grant
dollars.
EPA
is
considering
this
option
which
would
exempt
tribal
grantees
whose
actual
procurement
activities
total
$
250,000
or
less
from
Fair
Share
Negotiations.
EPA
is
specifically
requesting
public
comment
on
this
suggestion.
3.
The
reporting
and
recordkeeping
requirements.
Some
tribes
expressed
concerns
that
keeping
records
of
and
reporting
purchases
for
EPA
funded
grants
would
impose
a
heavy
burden
on
tribal
governments.
Instead,
they
suggested
basing
reporting
on
the
amount
of
money
the
tribe
received
rather
than
on
the
amount
of
money
it
spent
on
outside
supplies
and
services.
EPA
considered
these
concerns.
However,
40
CFR
Part
31
already
requires
tribes
to
comply
with
Part
31'
s
recordkeeping
and
reporting
requirements,
which
include
MBE/
WBE
recordkeeping
and
reporting.
Today's
proposed
rulemaking
make
no
changes
to
the
existing
Part
31
reporting
and
recordkeeping
requirements.
The
Agency
believes
that
basing
requirements
on
amounts
received
rather
than
on
amounts
spent
would
be
an
inaccurate
measurement
of
MBE/
WBE
procurement
utilization.
EPA
currently
requires
financial
assistance
recipients
to
report
MBE/
WBE
accomplishments
based
on
dollars
spent
on
MBE/
WBE
procurements.
EPA
is
not
proposing
to
change
this
requirement.
4.
Compliance
with
the
good
faith
efforts
requirements.
One
commentor
objected
to
having
to
advertise
in
newspapers;
a
comment
was
also
made
that
EPA
should
investigate
alternative
mechanisms
that
encourage
a
tribe
to
seek
out
MBEs/
WBEs
during
the
procurement
process
without
incurring
an
unreasonable
financial
burden.
However,
as
discussed
above,
Section
7(
b)
of
the
Indian
Self­
Determination
and
Education
Assistance
Act
requires
tribal
governments
to
solicit
triballyowned
businesses
and/
or
businesses
owned
by
a
member(
s)
of
a
tribe,
before
undertaking
the
six
good
faith
efforts.
Tribes
currently
are
currently
subject
to
40
CFR
Part
31,
which
requires
them
to
make
good
faith
efforts
to
ensure
that
DBEs
are
used
whenever
possible.
EPA
is
not
proposing
to
change
this
requirement.
EPA
does
not
believe
that
the
good
faith
efforts
requirements
are
unduly
burdensome.
The
good
faith
efforts
requirements
would
take
effect
only
if
no
DBEs
are
found
to
do
the
work
in
each
of
the
four
procurement
categories
of
construction,
equipment,
services
and
supplies
in
the
initial
tribal
solicitation.
5.
Phase­
In
Period.
One
commentor
expressed
a
concern
about
the
timing
of
the
phase­
in
period
and
the
maximum
amount
of
time
needed
for
the
requirement
to
be
implemented.
EPA
expects
those
tribes
who
could
implement
this
requirement
before
the
expiration
of
the
three
year
phase­
in
period
to
do
so.
Those
tribes
who
cannot
do
so
would
be
given
the
full
three
years.
It
is
important
for
tribes
to
note
that
the
three
year
phase­
in
period
would
only
begin
after
the
final
rule's
effective
date,
which
should
allow
tribes
sufficient
time
to
comply
with
prepare
for
the
implementation
of
the
requirement.
In
the
spirit
of
Executive
Order
13175
and
consistent
with
EPA
policy
to
promote
communications
between
EPA
and
tribal
governments,
EPA
specifically
solicits
additional
comment
on
this
proposed
rule
from
tribal
officials.
Copies
of
written
communications
submitted
by
tribal
officials/
representatives
are
available
upon
request
from
the
docket
clerk
for
this
rulemaking.

G.
Executive
Order
13045:
Protection
of
Children
From
Environmental
Health
Risks
and
Safety
Risks
Executive
Order
13045
applies
to
any
rule
that
is
determined
to
be:
(
1)
``
economically
significant''
as
defined
under
Executive
Order
12866,
and
(
2)
concerns
any
environmental
health
or
safety
risk
that
EPA
has
reason
to
believe
may
have
a
disproportionate
effect
on
children.
If
the
regulatory
action
meets
both
criteria,
EPA
must
evaluate
the
environmental
health
or
safety
effects
of
the
planned
rule
on
children
and
explain
why
the
planned
regulation
is
preferable
to
other
potentially
effective
and
reasonably
feasible
alternatives
considered
by
the
Agency.
EPA
has
determined
that
the
proposed
rule
is
not
a
covered
regulatory
action
because
it
is
not
economically
significant
and
it
does
not
involve
decisions
based
on
environmental
health
or
safety
risks.
As
a
result,
the
proposed
rule
is
not
subject
to
the
requirements
of
the
Executive
Order.

H.
Executive
Order
13211:
Actions
that
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
This
rule
is
not
a
``
significant
energy
action''
as
defined
in
Executive
Order
13211,
``
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use''
(
66
FR
28355
(
May
22,
2001))
because
it
is
not
likely
to
have
a
significant
adverse
effect
on
the
supply,
distribution,
or
use
of
energy.
EPA
has
concluded
that
this
rule
is
not
likely
to
have
any
adverse
energy
effects.

I.
National
Technology
Transfer
and
Advancement
Act
Section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
(``
NTTAA''),
Public
Law
104
 
113,
12(
d)
(
15
U.
S.
C.
272
note)
directs
EPA
to
use
voluntary
consensus
standards
in
its
regulatory
activities
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impracticable.
Voluntary
consensus
standards
are
technical
standards
(
e.
g.,
materials
specifications,
test
methods,
sampling
procedures
and
business
practices)
that
are
developed
or
adopted
by
voluntary
consensus
standards
bodies.
The
NTTAA
directs
EPA
to
provide
Congress,
through
OMB,
explanations
when
the
Agency
decides
not
to
use
available
and
applicable
voluntary
consensus
standards.
This
proposed
rulemaking
does
not
involve
technical
standards.
Therefore,
EPA
is
not
considering
the
use
of
any
voluntary
consensus
standards.

List
of
Subjects
40
CFR
Part
30
Environmental
protection,
Administrative
practice
and
procedure,
Grant
programs
 
environmental
protection,
Reporting
and
recordkeeping
requirements.

40
CFR
Part
31
Accounting,
Administrative
practice
and
procedure,
Grant
programs,
Indians,
Intergovernmental
relations,
Reporting
and
recordkeeping
requirements.

40
CFR
Part
33
Grant
programs
 
environmental
protection.

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Proposed
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40
CFR
Part
35
Grant
programs
 
environmental
protection.
Grant
programs
 
Indians,
Hazardous
waste,
Indians,
Intergovernmental
relations,
Reporting
and
recordkeeping
requirements.

40
CFR
Part
40
Research
and
Demonstration
Grants
 
Projects
involving
construction.

Dated:
July
9,
2003.
Linda
J.
Fisher,
Acting
Administrator.

For
the
reasons
set
out
in
the
preamble,
title
40,
chapter
I
of
the
Code
of
Federal
Regulations
is
proposed
to
be
amended
as
follows:

PART
30
 
[
AMENDED]

1.
The
authority
citation
for
part
30
continues
to
read
as
follows:

Authority:
7
U.
S.
C.
135
et
seq.;
15
U.
S.
C.
2601
et
seq.;
33
U.
S.
C.
1251
et
seq.;
42
U.
S.
C.
241,
242(
b),
243,
246,
300f,
300j
 
1,
300j
 
2,
300j
 
3;
1857
et
seq.;
6901
et
seq.,
7401
et
seq.,
OMB
circular
A
 
110
(
64
FR
54926,
October
8,
1999).

§
30.44
[
Amended]

2.
Section
30.44
is
amended
by
removing
and
reserving
paragraph
(
b).

PART
31
 
[
AMENDED]

3.
The
authority
citation
for
part
31
continues
to
read
as
follows:

Authority:
33
U.
S.
C.
1251
et
seq.;
42
U.
S.
C.
7401
et
seq.;
42
U.
S.
C.
6901
et
seq.;
42
U.
S.
C.
300f
et
seq.;
7
U.
S.
C.
136
et
seq.;
15
U.
S.
C.
2601
et
seq.;
42
U.
S.
C.
9601
et
seq.;
20
U.
S.
C.
4011
et
seq.;
33
U.
S.
C.
1401
et
seq.

§
31.36
[
Amended]

4.
Section
31.36
is
amended
by
removing
and
reserving
paragraph
(
e).
5.
Part
33
is
added
as
follows:

PART
33
 
PARTICIPATION
BY
DISADVANTAGED
BUSINESS
ENTERPRISES
IN
UNITED
STATES
ENVIRONMENTAL
PROTECTION
AGENCY
PROGRAMS
Subpart
A
 
General
Provisions
Sec.
33.101
What
are
the
objectives
of
this
part?
33.102
When
do
the
requirements
of
this
part
apply?
33.103
What
do
the
terms
in
this
part
mean?
33.104
May
a
recipient
apply
for
a
waiver
from
the
requirements
of
this
part?
33.105
What
are
the
compliance
and
enforcement
provisions
of
this
part?
33.106
What
assurances
must
EPA
financial
assistance
recipients
obtain
from
their
contractors?
33.107
What
are
the
rules
governing
availability
of
records,
cooperation,
and
intimidation
and
retaliation?
Subpart
B
 
Certification
33.201
What
does
this
subpart
require?
33.202
How
does
an
entity
qualify
as
an
MBE
or
WBE
under
EPA's
8%
statute?
33.203
How
does
an
entity
qualify
as
an
MBE
or
WBE
under
EPA's
10%
statute?
33.204
Where
does
an
entity
become
certified
under
EPA's
8%
and
10%
statutes?
33.205
How
does
an
entity
become
certified
by
EPA?
33.206
Is
there
a
list
of
certified
MBEs
and
WBEs?
33.207
Can
an
entity
reapply
to
EPA
for
MBE
or
WBE
certification?
33.208
How
long
does
an
MBE
or
WBE
certification
from
EPA
last?
33.209
Can
EPA
re­
evaluate
the
MBE
or
WBE
status
of
an
entity
after
EPA
certifies
it
to
be
an
MBE
or
WBE?
33.210
Does
an
entity
certified
as
an
MBE
or
WBE
by
EPA
need
to
keep
EPA
informed
of
any
changes
which
may
affect
the
entity's
certification?
33.211
What
is
an
EPA
Private
Certifier?
33.212
Can
an
EPA
Private
Certifier
charge
a
fee
to
an
entity
to
process
the
entity's
application
for
MBE
or
WBE
certification?
33.213
How
does
an
organization
or
business
concern
become
an
EPA
Private
Certifier?
33.214
How
long
may
an
organization
or
business
concern
be
an
EPA
Private
Certifier?
33.215
Is
there
a
list
of
EPA
Private
Certifiers?
33.216
What
is
the
process
for
appealing
or
challenging
an
EPA
MBE
or
WBE
certification
determination?
33.217
What
conduct
is
prohibited
by
this
subpart?

Subpart
C
 
Good
Faith
Efforts
33.301
What
does
this
subpart
require?
33.302
Are
there
any
additional
contract
administration
requirements?
33.303
Are
there
special
rules
for
loans
under
EPA
financial
assistance
agreements?
33.304
Must
a
Native
American
(
either
as
an
individual,
organization,
Tribe
or
Tribal
Government)
recipient
or
prime
contractor
follow
the
six
good
faith
efforts?

Subpart
D
 
Fair
Share
Objectives
33.401
What
does
this
subpart
require?
33.402
Are
there
special
rules
for
loans
under
EPA
financial
assistance
agreements?
33.403
What
is
a
fair
share
objective?
33.404
When
must
a
recipient
negotiate
fair
share
objectives
with
EPA?
33.405
How
does
a
recipient
determine
its
fair
share
objectives?
33.406
May
a
recipient
designate
a
lead
agency
for
fair
share
objective
negotiation
purposes?
33.407
How
long
do
MBE
and
WBE
fair
share
objectives
remain
in
effect?
33.408
May
a
recipient
use
race
and/
or
gender
conscious
measures
as
part
of
this
program?
33.409
May
a
recipient
use
quotas
as
part
of
this
program?
33.410
Can
a
recipient
be
penalized
for
failing
to
meet
its
fair
share
objectives?
33.411
Who
may
be
exempted
from
this
subpart?
33.412
Must
an
Insular
Area
or
Indian
Tribal
Government
recipient
negotiate
fair
share
objectives?

Subpart
E
 
Recordkeeping
and
Reporting
33.501
What
are
the
recordkeeping
requirements
of
this
part?
33.502
What
are
the
reporting
requirement
of
this
part?
33.503
How
does
a
recipient
calculate
MBE
and
WBE
participation
for
reporting
purposes?
Appendix
to
Part
33
 
Term
and
Condition
Authority:
42
U.
S.
C.
7601
note,
42
U.
S.
C.
4370d,
15
U.
S.
C.
637
note,
42
U.
S.
C.
9605(
f);
E.
O.
11625,
36
FR
19967,
3
CFR,
1971
Comp.,
p.
213;
E.
O.
12138,
49
FR
29637,
3
CFR,
1979
Comp.,
p.
393;
E.
O.
12432,
48
FR
32551,
3
CFR,
1983
Comp.,
p.
198.

Subpart
A
 
General
Provisions
§
33.101
What
are
the
objectives
of
this
part?

The
objectives
of
this
part
are:
(
a)
To
ensure
nondiscrimination
in
the
award
of
contracts
under
EPA
financial
assistance
agreements;
(
b)
To
ensure
that
EPA's
DBE
Program
is
narrowly
tailored
in
accordance
with
applicable
law;
(
c)
To
help
remove
barriers
to
the
participation
of
DBEs
in
the
award
of
contracts
under
EPA
financial
assistance
agreements;
and
(
d)
To
provide
appropriate
flexibility
to
recipients
of
EPA
financial
assistance
in
establishing
and
providing
contracting
opportunities
for
DBEs.

§
33.102
When
do
the
requirements
of
this
part
apply?

The
requirements
of
this
part
apply
to
procurement
under
EPA
financial
assistance
agreements
performed
entirely
within
the
United
States,
whether
by
a
recipient
or
its
prime
contractor,
for
construction,
equipment,
services
and
supplies.

§
33.103
What
do
the
terms
in
this
part
mean?

Terms
not
defined
below
shall
have
the
meaning
given
to
them
in
40
CFR
part
30,
part
31
and
part
35
as
applicable.
As
used
in
this
part:
Availability
analysis
means
documentation
of
the
availability
of
MBEs
and
WBEs
in
the
relevant
geographic
market
in
relation
to
the
total
number
of
firms
available
in
that
area.
Award
official
means
the
EPA
Regional
or
Headquarters
official
delegated
the
authority
to
execute
financial
assistance
agreements
on
behalf
of
EPA.

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Proposed
Rules
Broker
means
a
firm
that
does
not
itself
perform,
manage
or
supervise
the
work
of
its
contract
or
subcontract
in
a
manner
consistent
with
the
normal
business
practices
for
contractors
or
subcontractors
in
its
line
of
business.
Business,
business
concern
or
business
enterprise
means
an
entity
organized
for
profit
with
a
place
of
business
located
in
the
United
States,
and
which
operates
primarily
within
the
United
States
or
which
makes
a
significant
contribution
to
the
United
States
economy
through
payment
of
taxes
or
use
of
American
products,
materials
or
labor.
Construction
means
erection,
alteration,
or
repair
(
including
dredging,
excavating,
and
painting)
of
buildings,
structures,
or
other
improvements
to
real
property,
and
activities
in
response
to
a
release
or
a
threat
of
a
release
of
a
hazardous
substance
into
the
environment,
or
activities
to
prevent
the
introduction
of
a
hazardous
substance
into
a
water
supply.
Disabled
American
means,
with
respect
to
an
individual,
permanent
or
temporary
physical
or
mental
impairment
that
substantially
limits
one
or
more
of
the
major
life
activities
of
such
an
individual;
a
record
of
such
an
impairment;
or
being
regarded
as
having
such
an
impairment.
Disadvantaged
Business
Enterprise
(
DBE)
means
an
entity
owned
or
controlled
by
a
socially
and
economically
disadvantaged
individual
as
described
by
Public
Law
102
 
389
(
42
U.
S.
C.
4370d)
or
an
entity
owned
and
controlled
by
a
socially
and
economically
disadvantaged
individual
as
described
by
Title
X
of
the
Clean
Air
Act
Amendments
of
1990
(
42
U.
S.
C.
7601
note);
a
Small
Business
Enterprise
(
SBE);
a
Small
Business
in
a
Rural
Area
(
SBRA);
or
a
Labor
Surplus
Area
Firm
(
LSAF),
a
Historically
Underutilized
Business
(
HUB)
Zone
Small
Business
Concern,
or
a
concern
under
a
successor
program.
Disparity
study
means
a
comparison
within
the
preceding
ten
years
of
the
available
MBEs
and
WBEs
in
a
relevant
geographic
market
with
their
actual
usage
by
entities
procuring
in
the
categories
of
construction,
equipment,
services
and
supplies.
EPA
Private
Certifier
means
an
organization
or
business
concern
approved
by
EPA's
Office
of
Small
and
Disadvantaged
Business
Utilization
(
OSDBU)
to
assist
in
EPA
OSDBU's
determination
of
whether
an
entity
is
owned
and/
or
controlled
by
one
or
more
individuals
claiming
disadvantaged
status.
Equipment
means
items
procured
under
a
financial
assistance
agreement
as
defined
by
applicable
regulations
(
for
example
40
CFR
30.2
and
40
CFR
31.3)
for
the
particular
type
of
financial
assistance
received.
Fair
share
objective
means
an
objective
expressing
the
percentage
of
MBE
or
WBE
utilization
expected
absent
the
effects
of
discrimination.
Financial
assistance
agreement
means
grants
or
cooperative
agreements
awarded
by
EPA.
The
term
includes
grants
or
cooperative
agreements
used
to
capitalize
revolving
loan
funds,
including,
but
not
limited
to,
the
Clean
Water
State
Revolving
Loan
Fund
(
CWSRF)
Program
under
Title
VI
of
the
Clean
Water
Act,
as
amended,
33
U.
S.
C.
1381
et.
seq.,
the
Drinking
Water
State
Revolving
Fund
(
DWSRF)
Program
under
section
1452
of
the
Safe
Drinking
Water
Act,
42
U.
S.
C.
300j­
12,
and
the
Brownfields
Cleanup
Revolving
Loan
Fund
(
BCRLF)
Program
under
section
104
of
the
Comprehensive
Environmental
Response,
Compensation
and
Liability
Act,
42
U.
S.
C.
9604.
Good
faith
efforts
means
the
race
and/
or
gender
neutral
measures
described
in
Subpart
C
of
this
part.
Historically
Black
College
or
University
(
HBCU)
means
an
institution
determined
by
the
Secretary
of
Education
to
meet
the
requirements
of
34
CFR
part
608.
HUBZone
means
a
historically
underutilized
business
zone,
which
is
an
area
located
within
one
or
more
qualified
census
tracts,
qualified
metropolitan
counties,
or
lands
within
the
external
boundaries
of
an
Indian
reservation.
HUBZone
Small
Business
Concern
means
a
small
business
concern
that
appears
on
the
List
of
Qualified
HUBZone
Small
Business
Concerns
maintained
by
the
Small
Business
Administration.
Identified
loan
means
a
loan
project
or
set­
aside
activity
receiving
assistance
from
a
recipient
of
an
EPA
financial
assistance
agreement
to
capitalize
a
revolving
loan
fund,
which:
(
1)
In
the
case
of
the
CWSRF
Program,
is
a
project
funded
from
amounts
equal
to
the
capitalization
grant;
(
2)
In
the
case
of
the
DWSRF
Program,
is
a
loan
project
or
set­
aside
activity
funded
from
amounts
up
to
the
amount
of
the
capitalization
grant;
or
(
3)
In
the
case
of
the
BCRLF
Program,
is
a
project
that
has
been
funded
with
EPA
financial
assistance.
Insular
area
means
the
Commonwealth
of
Puerto
Rico
or
any
territory
or
possession
of
the
United
States.
Joint
venture
means
an
association
of
two
or
more
concerns
to
carry
out
a
single,
for­
profit
business
enterprise,
for
which
the
parties
combine
their
property,
capital,
efforts,
skills
and
knowledge.
Labor
Surplus
Area
Firm
(
LSAF)
means
a
concern
that
together
with
its
first­
tier
subcontractors
will
perform
substantially
in
labor
surplus
areas
(
as
identified
by
the
Department
of
Labor
in
accordance
with
20
CFR
part
654).
Performance
is
substantially
in
labor
surplus
areas
if
the
costs
incurred
under
the
contract
on
account
of
manufacturing,
production
or
performance
of
appropriate
services
in
labor
surplus
areas
exceed
50
percent
of
the
contract
price.
Minority
Business
Enterprise
(
MBE)
means
a
Disadvantaged
Business
Enterprise
(
DBE)
other
than
a
Small
Business
Enterprise
(
SBE),
a
Labor
Surplus
Area
Firm
(
LSAF),
a
Small
Business
in
Rural
Areas
(
SBRA),
or
a
Women's
Business
Enterprise
(
WBE).
Minority
institution
means
an
accredited
college
or
university
whose
enrollment
of
a
single
designated
group
or
a
combination
of
designated
groups
(
as
defined
by
the
Small
Business
Administration
regulations
at
13
CFR
part
124)
exceeds
50%
of
the
total
enrollment.
Native
American
means
any
individual
who
is
an
American
Indian,
Eskimo,
Aleut,
or
Native
Hawaiian.
Recipient
means
an
entity
that
receives
an
EPA
financial
assistance
agreement
or
is
a
subrecipient
of
such
agreement.
Services
means
a
contractor's
labor,
time
or
efforts
provided
in
a
manner
consistent
with
normal
business
practices
which
do
not
involve
the
delivery
of
a
specific
end
item,
other
than
documents
(
e.
g.,
reports,
design
drawings,
specifications).
Small
business,
small
business
concern
or
Small
Business
Enterprise
(
SBE)
means
a
concern,
including
its
affiliates,
that
is
independently
owned
and
operated,
not
dominant
in
the
field
of
operation
in
which
it
is
bidding,
and
qualified
as
a
small
business
under
the
criteria
and
size
standards
in
13
CFR
part
121.
Small
Business
in
a
Rural
Area
(
SBRA)
means
a
small
business
operating
in
an
area
identified
as
a
rural
county
with
a
code
6
 
9
in
the
Rural­
Urban
continuum
Classification
Code
developed
by
the
United
States
Department
of
Agriculture
in
1980.
Supplies
means
items
procured
under
a
financial
assistance
agreement
as
defined
by
applicable
regulations
for
the
particular
type
of
financial
assistance
received.
United
States
means
any
of
the
several
States,
the
District
of
Columbia,
the
Commonwealth
of
Puerto
Rico
and
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Proposed
Rules
any
other
territories
and
possessions
of
the
United
States.
Women's
Business
Enterprise
(
WBE)
means
a
business
concern
which
is
at
least
51%
owned
or
controlled
by
women
for
purposes
of
EPA's
8%
statute
or
a
business
concern
which
is
at
least
51%
owned
and
controlled
by
women
for
purposes
for
EPA's
10%
statute.
Determination
of
ownership
by
a
married
woman
in
a
community
property
jurisdiction
will
not
be
affected
by
her
husband's
50
percent
interest
in
her
share.
Similarly,
a
business
concern
which
is
more
than
50
percent
owned
by
a
married
man
will
not
become
a
qualified
WBE
by
virtue
of
his
wife's
50
percent
interest
in
his
share.

§
33.104
May
a
recipient
apply
for
a
waiver
from
the
requirements
of
this
part?

(
a)
A
recipient
may
apply
for
a
waiver
from
any
of
the
requirements
of
this
part
that
are
not
specifically
based
on
a
statute
or
Executive
Order,
by
submitting
a
written
request
to
the
Director
of
the
Office
of
Small
and
Disadvantaged
Business
Utilization
(
OSDBU
Director).
(
b)
The
request
must
document
special
or
exceptional
circumstances
that
make
compliance
with
the
requirement
impractical,
including
a
specific
proposal
addressing
how
the
recipient
intends
to
achieve
the
objectives
of
this
part
as
described
in
§
33.101.
The
request
must
show
that:
(
1)
There
is
a
reasonable
basis
to
conclude
that
the
recipient
could
achieve
a
level
of
MBE
and
WBE
participation
consistent
with
the
objectives
of
this
part
using
different
or
innovative
means
other
than
those
that
are
provided
in
subparts
C
or
D
of
this
part;
(
2)
Conditions
in
the
recipient's
jurisdiction
are
appropriate
for
implementing
the
request;
and
(
3)
The
request
is
consistent
with
applicable
law.
(
c)
The
OSDBU
Director
has
the
authority
to
approve
a
recipient's
request.
If
the
OSDBU
Director
grants
a
recipient's
request,
the
recipient
may
administer
its
program
as
provided
in
the
request,
subject
to
the
following
conditions:
(
1)
The
recipient's
level
of
MBE
and
WBE
participation
continues
to
be
consistent
with
the
objectives
of
this
part;
(
2)
There
is
a
reasonable
limitation
on
the
duration
of
the
recipient's
modified
program;
and
(
3)
Any
other
conditions
the
OSDBU
Director
makes
on
the
grant
of
the
waiver.
(
d)
The
OSDBU
Director
may
end
a
program
waiver
at
any
time
upon
notice
to
the
recipient
and
require
a
recipient
to
comply
with
the
provisions
of
this
part.
The
OSDBU
Director
may
also
extend
the
waiver
if
he
or
she
determines
that
all
requirements
of
paragraphs
(
b)
and
(
c)
of
this
section
continue
to
be
met.
Any
such
extension
shall
be
for
no
longer
than
the
period
originally
set
for
the
duration
of
the
program
waiver.

§
33.105
What
are
the
compliance
and
enforcement
provisions
of
this
part?

If
a
recipient
fails
to
comply
with
any
of
the
requirements
of
this
part,
EPA
may
take
remedial
action
under
40
CFR
parts
30,
31
or
35,
as
appropriate,
or
any
other
action
authorized
by
law,
including,
but
not
limited
to,
enforcement
under
18
U.
S.
C.
1001
and/
or
the
Program
Fraud
Civil
Remedies
Act
of
1986
(
31
U.
S.
C.
3801
et
seq.).

§
33.106
What
assurances
must
EPA
financial
assistance
recipients
obtain
from
their
contractors?

The
recipient
must
ensure
that
each
procurement
contract
it
awards
contains
the
term
and
condition
specified
in
the
appendix
to
this
part
concerning
compliance
with
the
requirements
of
this
part.
The
recipient
must
also
ensure
that
this
term
and
condition
is
included
in
each
procurement
contract
awarded
by
an
entity
receiving
an
identified
loan
under
a
financial
assistance
agreement
to
capitalize
a
revolving
loan
fund.

§
33.107
What
are
the
rules
governing
availability
of
records,
cooperation,
and
intimidation
and
retaliation?

(
a)
Availability
of
records.
(
1)
In
responding
to
requests
for
information
concerning
any
aspect
of
EPA's
DBE
Program,
EPA
complies
with
the
provisions
of
the
Federal
Freedom
of
Information
and
Privacy
Acts
(
5
U.
S.
C.
552
and
552a).
EPA
may
make
available
to
the
public
any
information
concerning
EPA's
DBE
Program
release
of
which
is
not
prohibited
by
Federal
law
or
regulation,
including
EPA's
Confidential
Business
Information
regulations
at
40
CFR
part
2,
subpart
B.
(
2)
EPA
recipients
shall
safeguard
from
disclosure
to
unauthorized
persons
information
that
may
reasonably
be
considered
as
confidential
business
information,
consistent
with
Federal,
state,
and
local
law.
(
b)
Cooperation.
All
participants
in
EPA's
DBE
Program
are
required
to
cooperate
fully
and
promptly
with
EPA,
EPA
Private
Certifier
and
EPA
recipient
reviews,
investigations,
and
other
requests
for
information.
Failure
to
do
so
shall
be
a
ground
for
appropriate
action
against
the
party
involved
in
accordance
with
§
33.105.
(
c)
Intimidation
and
retaliation.
A
recipient,
contractor,
or
any
other
participant
in
EPA's
DBE
Program
must
not
intimidate,
threaten,
coerce,
or
discriminate
against
any
individual
or
firm
for
the
purpose
of
interfering
with
any
right
or
privilege
secured
by
this
Part.
Violation
of
this
prohibition
shall
be
a
ground
for
appropriate
action
against
the
party
involved
in
accordance
with
§
33.105.

Subpart
B
 
Certification
§
33.201
What
does
this
subpart
require?

(
a)
In
order
to
participate
as
an
MBE
or
WBE
prime
or
subcontractor
for
EPA
recipients
under
EPA's
DBE
Program,
an
entity
must
be
properly
certified.
(
b)
EPA's
DBE
Program
is
primarily
based
on
two
statutes.
Public
Law
102
 
389,
42
U.
S.
C.
4370d,
provides
for
an
8%
objective
for
awarding
contracts
under
EPA
financial
assistance
agreements
to
business
concerns
or
other
organizations
owned
or
controlled
by
socially
and
economically
disadvantaged
individuals,
including
HBCUs
and
women
(``
EPA's
8%
statute'').
Title
X
of
the
Clean
Air
Act
Amendments
of
1990,
42
U.
S.
C.
7601
note,
provides
for
a
10%
objective
for
awarding
contracts
under
EPA
financial
assistance
agreements
for
research
relating
to
such
amendments
to
business
concerns
or
other
organizations
owned
and
controlled
by
socially
and
economically
disadvantaged
individuals
(``
EPA's
10%
statute'').

§
33.202
How
does
an
entity
qualify
as
an
MBE
or
WBE
under
EPA's
8%
statute?

To
qualify
as
an
MBE
or
WBE
under
EPA's
8%
statute,
an
entity
must
establish
that
it
is
owned
or
controlled
by
socially
and
economically
disadvantaged
individuals
who
are
of
good
character
and
citizens
of
the
United
States.
An
entity
need
not
demonstrate
potential
for
success.
(
a)
Ownership
or
control.
``
Ownership''
and
``
control''
shall
have
the
same
meanings
as
set
forth
in
13
CFR
124.105
and
13
CFR
124.106,
respectively.
(
See
also
13
CFR
124.109
for
special
rules
applicable
to
Indian
tribes
and
Alaska
Native
Corporations;
13
CFR
124.110
for
special
rules
applicable
to
Native
Hawaiian
Organizations).
(
b)
Socially
disadvantaged
individual.
A
socially
disadvantaged
individual
is
a
person
who
has
been
subjected
to
racial
or
ethnic
prejudice
or
cultural
bias
because
of
his
or
her
identity
as
a
member
of
a
group
without
regard
to
his
or
her
individual
qualities
and
as
further
defined
by
the
implementing
regulations
of
section
8(
a)(
5)
of
the
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142
/
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July
24,
2003
/
Proposed
Rules
Small
Business
Act
(
15
U.
S.
C.
637(
a)(
5);
13
CFR
124.103;
see
also
13
CFR
124.109
for
special
rules
applicable
to
Indian
tribes
and
Alaska
Native
Corporations;
13
CFR
124.110
for
special
rules
applicable
to
Native
Hawaiian
Organizations).
(
c)
Economically
disadvantaged
individual.
An
economically
disadvantaged
individual
is
a
socially
disadvantaged
individual
whose
ability
to
compete
in
the
free
enterprise
system
is
impaired
due
to
diminished
capital
and
credit
opportunities,
as
compared
to
others
in
the
same
business
area
who
are
not
socially
disadvantaged
and
as
further
defined
by
section
8(
a)(
6)
of
the
Small
Business
Act
(
15
U.
S.
C.
637(
a)(
6))
and
its
implementing
regulations
(
13
CFR
124.104).
(
See
also
13
CFR
124.109
for
special
rules
applicable
to
Indian
tribes
and
Alaska
Native
Corporations;
13
CFR
124.110
for
special
rules
applicable
to
Native
Hawaiian
Organizations).
Under
EPA's
DBE
Program,
an
individual
claiming
disadvantaged
status
must
have
an
initial
and
continued
personal
net
worth
of
less
than
$
750,000.
(
d)
HBCU.
An
HBCU
automatically
qualifies
as
an
entity
owned
or
controlled
by
socially
and
economically
disadvantaged
individuals.
(
e)
Women.
Women
are
deemed
to
be
socially
and
economically
disadvantaged
individuals.
Ownership
or
control
must
be
demonstrated
pursuant
to
paragraph
(
a)
of
this
section,
which
may
be
accomplished
by
certification
under
§
33.204.

§
33.203
How
does
an
entity
qualify
as
an
MBE
or
WBE
under
EPA's
10%
statute?
To
qualify
as
an
MBE
or
WBE
under
EPA's
10%
statute,
an
entity
must
establish
that
it
is
owned
and
controlled
by
socially
and
economically
disadvantaged
individuals
who
are
of
good
character
and
citizens
of
the
United
States.
(
a)
Ownership
and
control.
An
entity
must
be
at
least
51%
owned
by
a
socially
and
economically
disadvantaged
individual,
or
in
the
case
of
a
publicly
traded
company,
at
least
51%
of
the
stock
must
be
owned
by
one
or
more
socially
and
economically
disadvantaged
individuals,
and
the
management
and
daily
business
operations
of
the
business
concern
must
be
controlled
by
such
individuals.
(
See
also
13
CFR
124.109
for
special
rules
applicable
to
Indian
tribes
and
Alaska
Native
Corporations;
13
CFR
124.110
for
special
rules
applicable
to
Native
Hawaiian
Organizations).
(
b)
Socially
disadvantaged
individual.
A
socially
disadvantaged
individual
is
a
person
who
has
been
subjected
to
racial
or
ethnic
prejudice
or
cultural
bias
because
of
his
or
her
identity
as
a
member
of
a
group
without
regard
to
his
or
her
individual
qualities
and
as
further
defined
by
the
implementing
regulations
of
section
8(
a)(
5)
of
the
Small
Business
Act
(
15
U.
S.
C.
637(
a)(
5);
13
CFR
124.103;
see
also
13
CFR
124.109
for
special
rules
applicable
to
Indian
tribes
and
Alaska
Native
Corporations;
13
CFR
124.110
for
special
rules
applicable
to
Native
Hawaiian
Organizations).
(
c)
Economically
disadvantaged
individual.
An
economically
disadvantaged
individual
is
a
socially
disadvantaged
individual
whose
ability
to
compete
in
the
free
enterprise
system
is
impaired
due
to
diminished
capital
and
credit
opportunities,
as
compared
to
others
in
the
same
business
area
who
are
not
socially
disadvantaged
and
as
further
defined
by
section
8(
a)(
6)
of
the
Small
Business
Act
(
15
U.
S.
C.
637(
a)(
6))
and
its
implementing
regulations
(
13
CFR
124.104).
(
See
also
13
CFR
124.109
for
special
rules
applicable
to
Indian
tribes
and
Alaska
Native
Corporations;
13
CFR
124.110
for
special
rules
applicable
to
Native
Hawaiian
Organizations).
Under
EPA's
DBE
Program,
an
individual
claiming
disadvantaged
status
must
have
an
initial
and
continued
personal
net
worth
of
less
than
$
750,000.
(
d)
Presumptions.
In
accordance
with
Title
X
of
the
Clean
Air
Act
Amendments
of
1990,
42
U.
S.
C.
7601
note,
Black
Americans,
Hispanic
Americans,
Native
Americans,
Asian
Americans,
Women
and
Disabled
Americans
are
presumed
to
be
socially
and
economically
disadvantaged
individuals.
In
addition,
the
following
institutions
are
presumed
to
be
entities
owned
and
controlled
by
socially
and
economically
disadvantaged
individuals:
HBCUs,
Minority
Institutions
(
including
Tribal
Colleges
and
Universities
and
Hispanic­
Serving
Institutions)
and
private
and
voluntary
organizations
controlled
by
individuals
who
are
socially
and
economically
disadvantaged.
(
e)
Individuals
not
members
of
designated
groups.
Nothing
in
this
section
shall
prohibit
any
member
of
a
racial
or
ethnic
group
that
is
not
designated
as
socially
and
economically
disadvantaged
under
paragraph
(
d)
of
this
section
from
establishing
that
they
have
been
impeded
in
developing
a
business
concern
as
a
result
of
racial
or
ethnic
discrimination.
(
f)
Rebuttal
of
presumptions.
The
presumptions
established
by
paragraph
(
d)
of
this
section
may
be
rebutted
in
accordance
with
§
33.209
with
respect
to
a
particular
entity
if
it
is
reasonably
established
that
the
individual
at
issue
is
not
experiencing
impediments
to
developing
such
entity
as
a
result
of
the
individual's
identification
as
a
member
of
a
specified
group.
(
g)
Joint
ventures.
(
1)
A
joint
venture
may
be
considered
owned
and
controlled
by
socially
and
economically
disadvantaged
individuals,
notwithstanding
the
size
of
such
joint
venture,
if
a
party
to
the
joint
venture
is
an
entity
that
is
owned
and
controlled
by
a
socially
and
economically
disadvantaged
individual.
(
2)
A
person
who
is
not
an
economically
disadvantaged
individual
or
an
entity
owned
and
controlled
by
a
socially
and
economically
disadvantaged
individual,
as
a
party
to
a
joint
venture,
may
not
be
a
party
to
more
than
two
awarded
contracts
in
a
fiscal
year
solely
by
reason
of
paragraph
(
g)(
1)
of
this
section.

§
33.204
Where
does
an
entity
become
certified
under
EPA's
8%
and
10%
statutes?

(
a)
In
order
to
participate
as
an
MBE
or
WBE
prime
or
subcontractor
for
EPA
recipients
under
EPA's
DBE
Program,
an
entity
should
first
attempt
to
become
certified
by
the
following:
(
1)
The
United
States
Small
Business
Administration
(
SBA),
under
its
8(
a)
Business
Development
Program
(
13
CFR
part
124,
subpart
A)
or
its
Small
Disadvantaged
Business
(
SDB)
Program,
(
13
CFR
part
124,
subpart
B);
(
2)
The
United
States
Department
of
Transportation
(
DOT),
under
its
regulations
for
Participation
by
Disadvantaged
Business
Enterprises
in
DOT
Programs
(
49
CFR
parts
23
and
26);
or
(
3)
an
Indian
Tribal
Government,
State
Government,
local
Government
or
independent
private
organization
in
accordance
with
EPA's
8%
or
10%
statute
as
applicable.
(
4)
Such
certifications
shall
be
considered
acceptable
for
establishing
MBE
or
WBE
status,
as
appropriate,
under
EPA's
DBE
Program
so
long
as
the
certification
meets
EPA's
U.
S.
citizenship
requirement
under
§
33.202
or
§
33.203.
An
entity
may
only
apply
to
EPA
for
MBE
or
WBE
certification
under
the
procedures
set
forth
in
§
33.205
if
that
entity
first
is
unable
to
obtain
MBE
or
WBE
certification
under
paragraphs
(
a)
(
1)
through
(
3)
of
this
section.
(
b)
[
Reserved].

§
33.205
How
does
an
entity
become
certified
by
EPA?

(
a)
Filing
an
application.
In
accordance
with
§
33.204,
an
entity
may
apply
to
EPA's
Office
of
Small
and
Disadvantaged
Business
Utilization
(
EPA
OSDBU)
for
certification
as
an
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/
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24,
2003
/
Proposed
Rules
MBE
or
WBE.
EPA's
Regional
Offices
will
provide
further
information
and
required
application
forms
to
any
entity
interested
in
MBE
or
WBE
certification.
In
order
to
become
certified
as
an
MBE
or
WBE,
an
entity
may
apply
to
EPA
OSDBU
or,
if
directed
by
EPA
OSDBU,
to
an
EPA
Private
Certifier.
The
applicant
must
attest
to
the
accuracy
and
truthfulness
of
the
information
on
the
application
form.
This
shall
be
done
either
in
the
form
of
an
affidavit
sworn
to
by
the
applicant
before
a
person
who
is
authorized
by
state
law
to
administer
oaths
or
in
the
form
of
an
unsworn
declaration
executed
under
penalty
of
perjury
of
the
laws
of
the
United
States.
The
application
must
include
evidence
demonstrating
that
the
entity
is
owned
or
controlled
by
one
or
more
individuals
claiming
disadvantaged
status
under
EPA's
8%
statute
or
owned
and
controlled
by
one
or
more
individuals
claiming
disadvantaged
status
under
EPA's
10%
statute,
along
with
certifications
or
narratives
regarding
the
disadvantaged
status
of
such
individuals.
In
addition,
the
application
must
include
documentation
of
a
denial
of
certification
by
a
Federal
agency,
State
government,
local
government,
Indian
Tribal
government,
or
independent
private
organization,
if
applicable.
(
b)
Application
processing.
EPA
OSDBU
or
an
EPA
Private
Certifier
will
advise
each
applicant
within
15
days,
whenever
practicable,
after
receipt
of
an
application
whether
the
application
is
complete
and
suitable
for
evaluation
and,
if
not,
what
additional
information
or
action
is
required.
EPA
OSDBU
shall
make
its
certification
decision
within
30
days
of
receipt
of
a
complete
and
suitable
application
package,
whenever
practicable.
The
burden
is
on
the
applicant
to
demonstrate
that
those
individuals
claiming
disadvantaged
status
own
or
control
the
entity
under
EPA's
8%
statute
or
own
and
control
the
entity
under
EPA's
10%
statute.
(
c)
Ownership
and/
or
control
determination.
EPA
OSDBU
first
will
determine
whether
those
individuals
claiming
disadvantaged
status
own
or
control
the
applicant
entity
under
EPA's
8%
statute
or
own
and
control
the
applicant
entity
under
EPA's
10%
statute.
If
EPA
OSDBU
determines
that
the
applicant
does
not
meet
the
ownership
and/
or
control
requirements
of
this
Subpart,
EPA
OSDBU
will
issue
a
written
decision
to
the
entity
rejecting
the
application
and
set
forth
the
reasons
for
disapproval.
(
d)
Disadvantaged
determination.
Once
EPA
OSDBU
determines
whether
an
applicant
meets
the
ownership
and/
or
control
requirements
of
this
subpart,
EPA
OSDBU
will
determine
whether
the
applicable
disadvantaged
status
requirements
under
EPA's
8%
or
10%
statute
have
been
met.
If
EPA
OSDBU
determines
that
the
applicable
disadvantaged
status
requirements
have
been
met,
EPA
OSDBU
shall
notify
the
applicant
that
it
has
been
certified
and
place
the
MBE
or
WBE
on
EPA
OSDBU's
list
of
qualified
MBEs
and
WBEs.
If
EPA
OSDBU
determines
that
the
applicable
disadvantaged
status
requirements
have
not
been
met,
EPA
OSDBU
will
reject
the
entity's
application
for
certification.
EPA
OSDBU
will
issue
a
written
decision
to
the
entity
setting
forth
EPA
OSDBU's
reasons
for
disapproval.
(
e)
Evaluation
standards.
(
1)
An
entity's
eligibility
shall
be
evaluated
on
the
basis
of
present
circumstances.
An
entity
shall
not
be
denied
certification
based
solely
on
historical
information
indicating
a
lack
of
ownership
and/
or
control
of
the
firm
by
socially
and
economically
disadvantaged
individuals
at
some
time
in
the
past,
if
the
entity
currently
meets
the
ownership
and/
or
control
standards
of
this
Subpart.
(
2)
Entities
seeking
MBE
or
WBE
certification
shall
cooperate
fully
with
requests
for
information
relevant
to
the
certification
process.
Failure
or
refusal
to
provide
such
information
is
a
ground
for
denial
of
certification.
(
3)
In
making
its
certification
determination,
EPA
OSDBU
may
consider
whether
an
entity
has
exhibited
a
pattern
of
conduct
indicating
its
involvement
in
attempts
to
evade
or
subvert
the
intent
or
requirements
of
the
DBE
Program.
(
4)
EPA
OSDBU
shall
not
consider
the
issue
of
whether
an
entity
performs
a
commercially
useful
function
in
making
its
certification
determination.
Consideration
of
whether
an
entity
performs
a
commercially
useful
function
or
is
a
regular
dealer
pertains
solely
to
counting
toward
MBE
and
WBE
objectives
as
provided
in
subpart
E
of
this
part.
(
5)
Information
gathered
as
part
of
the
certification
process
that
may
reasonably
be
regarded
as
proprietary
or
other
confidential
business
information
will
be
safeguarded
from
disclosure
to
unauthorized
persons,
consistent
with
applicable
Federal,
State,
and
local
law.
(
6)
To
assist
in
making
EPA
OSDBU's
certification
determination,
EPA
OSDBU
itself,
or
through
an
EPA
Private
Certifier,
may
take
the
following
steps:
(
i)
Perform
an
on­
site
visit
to
the
offices
of
the
entity.
Interview
the
principal
officers
of
the
entity
and
review
their
resumes
and/
or
work
histories.
Perform
an
on­
site
visit
to
local
job
sites
if
there
are
such
sites
on
which
the
entity
is
working
at
the
time
of
the
certification
investigation.
Already
existing
site
visit
reports
may
be
relied
upon
in
making
the
certification;
(
ii)
If
the
entity
is
a
corporation,
analyze
the
ownership
of
stock
in
the
entity;
(
iii)
Analyze
the
bonding
and
financial
capacity
of
the
entity;
(
iv)
Determine
the
work
history
of
the
entity,
including
contracts
it
has
received
and
work
it
has
completed;
(
v)
Obtain
a
statement
from
the
entity
of
the
type
of
work
it
prefers
to
perform
for
EPA
recipients
under
the
DBE
Program
and
its
preferred
locations
for
performing
the
work,
if
any,
and;
(
vi)
Obtain
or
compile
a
list
of
the
equipment
owned
by
or
available
to
the
entity
and
the
licenses
the
entity
and
its
key
personnel
possess
to
perform
the
work
it
seeks
to
do
for
EPA
recipients
under
the
DBE
Program.

§
33.206
Is
there
a
list
of
certified
MBEs
and
WBEs?

EPA
OSDBU
will
maintain
a
list
of
certified
MBEs
and
WBEs
on
EPA
OSDBU's
Home
Page
on
the
Internet.
Any
interested
person
may
also
obtain
a
copy
of
the
list
from
EPA
OSDBU.

§
33.207
Can
an
entity
reapply
to
EPA
for
MBE
or
WBE
certification?

An
entity
which
has
been
denied
MBE
or
WBE
certification
may
reapply
for
certification
at
any
time
12
months
or
more
after
the
date
of
the
most
recent
determination
by
EPA
OSDBU
to
decline
the
application.

§
33.208
How
long
does
an
MBE
or
WBE
certification
from
EPA
last?

Once
EPA
OSDBU
certifies
an
entity
to
be
an
MBE
or
WBE
by
placing
it
on
the
EPA
OSDBU
list
of
certified
MBEs
and
WBEs
specified
in
§
33.206,
the
entity
will
generally
remain
on
the
list
for
a
period
of
three
years
from
the
date
of
its
certification.
To
remain
on
the
list
after
three
years,
an
entity
must
submit
a
new
application
and
receive
a
new
certification.

§
33.209
Can
EPA
re­
evaluate
the
MBE
or
WBE
status
of
an
entity
after
EPA
certifies
it
to
be
an
MBE
or
WBE?

(
a)
EPA
OSDBU
may
initiate
a
certification
determination
whenever
it
receives
credible
information
calling
into
question
an
entity's
eligibility
as
an
MBE
or
WBE.
Upon
its
completion
of
a
certification
determination,
EPA
OSDBU
will
issue
a
written
determination
regarding
the
MBE
or
WBE
status
of
the
questioned
entity.
(
b)
If
EPA
OSDBU
finds
that
the
entity
does
not
qualify
as
an
MBE
or
WBE,
EPA
OSDBU
will
decertify
the
entity
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/
Vol.
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No.
142
/
Thursday,
July
24,
2003
/
Proposed
Rules
an
MBE
or
WBE,
and
immediately
remove
the
entity
from
the
EPA
OSDBU
list
of
certified
MBEs
and
WBEs.
(
c)
If
EPA
OSDBU
finds
that
the
entity
continues
to
qualify
as
an
MBE
or
WBE,
the
determination
remains
in
effect
for
three
years
from
the
date
of
the
decision
under
the
same
conditions
as
if
the
entity
had
been
granted
MBE
or
WBE
certification
under
§
33.205.

§
33.210
Does
an
entity
certified
as
an
MBE
or
WBE
by
EPA
need
to
keep
EPA
informed
of
any
changes
which
may
affect
the
entity's
certification?

(
a)
An
entity
certified
as
an
MBE
or
WBE
by
EPA
OSDBU
must
provide
EPA
OSDBU,
every
year
on
the
anniversary
of
the
date
of
its
certification,
an
affidavit
sworn
to
by
the
entity's
owners
before
a
person
who
is
authorized
by
state
law
to
administer
oaths
or
an
unsworn
declaration
executed
under
penalty
of
perjury
of
the
laws
of
the
United
States.
This
affidavit
must
affirm
that
there
have
been
no
changes
in
the
entity's
circumstances
affecting
its
ability
to
meet
disadvantaged
status,
ownership,
and/
or
control
requirements
of
this
subpart
or
any
material
changes
in
the
information
provided
in
its
application
form.
Failure
to
comply
may
result
in
the
loss
of
MBE
or
WBE
certification
under
EPA's
DBE
Program.
(
b)
An
entity
certified
as
an
MBE
or
WBE
by
EPA
OSDBU
must
inform
EPA
OSDBU
in
writing
of
any
change
in
circumstance
affecting
the
MBE
or
WBE's
ability
to
meet
disadvantaged
status,
ownership,
and/
or
control
requirements
of
this
subpart
or
any
material
change
in
the
information
provided
in
its
application
form.
The
MBE
or
WBE
must
attach
supporting
documentation
describing
in
detail
the
nature
of
such
change.
The
notice
from
the
MBE
or
WBE
must
take
the
form
of
an
affidavit
sworn
to
by
the
applicant
before
a
person
who
is
authorized
by
State
law
to
administer
oaths
or
of
an
unsworn
declaration
executed
under
penalty
of
perjury
of
the
laws
of
the
United
States.
The
MBE
or
WBE
must
provide
the
written
notification
within
30
calendar
days
of
the
occurrence
of
the
change.

§
33.211
What
is
an
EPA
Private
Certifier?

An
EPA
Private
Certifier
is
an
organization
or
business
concern
assisting
EPA
OSDBU
in
its
determination
of
whether
an
entity
applying
for
MBE
or
WBE
certification
is
owned
and/
or
controlled
by
one
or
more
individuals
claiming
disadvantaged
status.
EPA
OSDBU
may
elect
to
arrange
for
one
or
more
EPA
Private
Certifiers
to
perform
certain
functions
in
the
certification
process;
however
the
determination
as
to
whether
an
entity
will
be
certified
as
an
MBE
or
WBE
under
this
program
shall
only
be
made
by
EPA
OSDBU.
If
EPA
OSDBU
elects
to
use
EPA
Private
Certifiers
to
perform
certain
functions
in
the
certification
process,
the
provisions
of
§
§
33.212
through
33.214
will
apply
to
those
EPA
Private
Certifiers.
EPA
OSDBU
may
establish
more
detailed
standards
regarding
qualifications,
monitoring,
procedures
and
use,
if
any,
of
EPA
Private
Certifiers
in
specific
contracts
or
agreements
between
EPA
and
the
EPA
Private
Certifiers.

§
33.212
Can
an
EPA
Private
Certifier
charge
a
fee
to
an
entity
to
process
the
entity's
application
for
MBE
or
WBE
certification?
With
EPA
OSDBU's
approval,
an
EPA
Private
Certifier
may
charge
a
reasonable
fee
to
an
entity
in
order
to
screen
the
entity's
application
for
completeness.
The
fee
must
be
for
actual
services
rendered
and
must
not
be
related
to
whether
or
not
the
entity
is
found
to
be
owned
and/
or
controlled
by
one
or
more
individuals
claiming
disadvantaged
status.

§
33.213
How
does
an
organization
or
business
concern
become
an
EPA
Private
Certifier?
(
a)
EPA
may
execute
contracts
or
agreements
with
organizations
or
business
concerns
seeking
to
become
EPA
Private
Certifiers.
Any
such
contract
or
agreement
will
include
provisions
for
the
oversight,
monitoring,
and
evaluation
of
all
certification
related
activities
by
EPA.
(
b)
The
organization
or
business
concern
must
demonstrate
a
knowledge
of
EPA
and
SBA
regulations
regarding
ownership
and
control,
as
well
as
business
organizations
and
the
legal
principles
affecting
their
ownership
and
control
generally,
including
stock
issuances,
voting
rights,
convertibility
of
debt
to
equity,
options,
and
powers
and
responsibilities
of
officers
and
directors,
general
and
limited
partners,
and
limited
liability
members.
(
c)
The
organization
or
business
concern
must
also,
along
with
its
principals,
demonstrate
good
character.
Good
character
does
not
exist
for
these
purposes
if
the
organization
or
concern
or
any
of
its
principals:
(
1)
Is
debarred
or
suspended
under
any
Federal
procurement
or
nonprocurement
debarment
and
suspension
regulations;
or
(
2)
Has
been
indicted
or
convicted
for
any
criminal
offense
or
suffered
a
civil
judgment
indicating
a
lack
of
business
integrity.
(
d)
As
a
condition
of
approval,
EPA
may
require
that
appropriate
officers
and/
or
key
employees
of
the
organization
or
business
concern
attend
a
training
session
on
EPA
and
SBA
rules
and
requirements.
(
e)
An
organization
or
business
concern
seeking
to
become
an
EPA
Private
Certifier
must
agree
to
provide
access
to
EPA
of
its
books
and
records
when
requested,
including
records
pertaining
to
its
certification
related
activities.
(
f)
EPA
will
include
in
any
contract
or
agreement
document
authorizing
an
organization
or
business
concern
to
act
as
an
EPA
Private
Certifier
appropriate
conditions
to
prohibit
conflicts
of
interests
between
the
EPA
Private
Certifier
and
the
entities
for
which
it
processes
MBE
or
WBE
certifications.

§
33.214
How
long
may
an
organization
or
business
concern
be
an
EPA
Private
Certifier?
(
a)
EPA's
contract
or
agreement
with
the
EPA
Private
Certifier
will
specify
how
long
the
organization
or
business
concern
may
be
an
EPA
Private
Certifier.
(
b)
EPA
may
terminate
a
contract
or
agreement
with
an
organization
or
business
concern
which
is
an
EPA
Private
Certifier
for
the
convenience
of
the
Government
at
any
time,
and
may
terminate
the
contract
or
agreement
for
default
where
appropriate.
Specific
grounds
for
termination
for
default
include,
but
are
not
limited
to:
(
1)
Charging
improper,
unreasonable
or
contingent
fees
in
violation
of
§
33.212;
or
(
2)
Engaging
in
prohibited
business
transactions
with
firms
for
which
it
processes
MBE
or
WBE
certification
applications
in
violation
of
§
33.213(
f).

§
33.215
Is
there
a
list
of
EPA
Private
Certifiers?
EPA
OSDBU
will
maintain
a
list
of
approved
EPA
Private
Certifiers
on
EPA
OSDBU's
Home
Page
on
the
Internet.
Any
interested
person
may
also
obtain
a
copy
of
the
list
from
EPA's
OSDBU.
The
list
is
available
at:
www.
epa.
gov/
osdbu.

§
33.216
What
is
the
process
for
appealing
or
challenging
an
EPA
MBE
or
WBE
certification
determination?
(
a)
An
entity
which
has
been
denied
MBE
or
WBE
certification
by
EPA
OSDBU
under
§
33.205
or
§
33.209
may
appeal
that
denial.
A
third
party
may
challenge
EPA
OSDBU's
determination
to
certify
an
entity
as
an
MBE
or
WBE
under
§
33.205
or
§
33.209.
(
b)
Appeals
and
challenges
must
be
sent
to
the
Director
of
OSDBU
at
Environmental
Protection
Agency,
1200
Pennsylvania
Avenue,
NW.,
Mail
Code
1230A,
Washington,
DC
20460.

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Proposed
Rules
(
c)
The
appeal
or
challenge
must
be
sent
to
the
Director
of
OSDBU
(
Director)
within
90
days
of
the
date
of
EPA
OSDBU's
MBE
or
WBE
certification
determination.
The
Director
may
accept
an
appeal
or
challenge
filed
later
than
90
days
after
the
date
of
EPA
OSDBU's
MBE
or
WBE
certification
determination
if
the
Director
determines
that
there
was
good
cause,
beyond
the
control
of
the
appellant
or
challenger,
for
the
late
filing
of
the
appeal
or
challenge.
(
d)
No
specific
format
is
required
for
an
appeal
or
challenge.
However,
the
appeal
or
challenge
must
include
information
and
arguments
concerning
why
EPA
OSDBU's
MBE
or
WBE
certification
determination
should
be
reversed.
For
challenges
in
which
a
third
party
questions
EPA
OSDBU's
determination
to
certify
an
entity
as
an
MBE
or
WBE
under
§
33.205
or
§
33.209,
the
third
party
must
also
send
a
copy
of
the
challenge
to
the
entity
whose
MBE
or
WBE
certification
is
being
questioned.
In
addition,
the
Director
shall
request
information
and
arguments
from
that
entity
as
to
why
EPA
OSDBU's
determination
to
certify
the
entity
as
an
MBE
or
WBE
should
be
upheld.
(
e)
The
Director
makes
his/
her
appeal
or
challenge
decision
based
solely
on
the
administrative
record
and
does
not
conduct
a
hearing.
The
Director
may
supplement
the
record
by
adding
relevant
information
made
available
by
any
other
source,
including
the
EPA
Office
of
Inspector
General;
Federal,
State,
or
local
law
enforcement
authorities;
an
EPA
recipient;
or
a
private
party.
(
f)
Consistent
with
Federal
law,
the
Director
shall
make
available,
upon
the
request
of
the
appellant,
challenger
or
the
entity
affected
by
the
Director's
appeal
or
challenge
decision,
any
supplementary
information
the
Director
receives
from
any
source
as
described
in
paragraph
(
e)
of
this
section.
(
g)
Pending
the
Director's
appeal
or
challenge
decision,
EPA
OSDBU's
MBE
or
WBE
certification
determination
remains
in
effect.
The
Director
does
not
stay
the
effect
of
its
MBE
or
WBE
certification
determination
while
he/
she
is
considering
an
appeal
or
challenge.
(
h)
The
Director
shall
reverse
EPA
OSDBU's
MBE
or
WBE
certification
determination
only
if
there
was
a
clear
and
significant
error
in
the
processing
of
the
certification
or
if
EPA
OSDBU
failed
to
consider
a
significant
material
fact
contained
within
the
entity's
application
for
MBE
or
WBE
certification.
(
i)
All
decisions
under
this
section
are
administratively
final.
§
33.217
What
conduct
is
prohibited
by
this
subpart?

An
entity
that
does
not
meet
the
eligibility
criteria
of
this
subpart
may
not
attempt
to
participate
as
an
MBE
or
WBE
in
contracts
awarded
under
EPA
financial
assistance
agreements
or
be
counted
as
such
by
an
EPA
recipient.
An
entity
that
submits
false,
fraudulent,
or
deceitful
statements
or
representations
or
under
circumstances
indicating
a
serious
lack
of
business
integrity
or
honesty
may
be
subject
to
sanctions
under
§
33.105.

Subpart
C
 
Good
Faith
Efforts
§
33.301
What
does
this
subpart
require?

A
recipient,
including
one
exempted
from
applying
the
fair
share
objective
requirements
by
§
33.411,
is
required
to
make
the
following
good
faith
efforts
whenever
procuring
construction,
equipment,
services
and
supplies
under
an
EPA
financial
assistance
agreement,
even
if
it
has
achieved
its
fair
share
objectives
under
subpart
D
of
this
part:
(
a)
Ensure
DBEs
are
made
aware
of
contracting
opportunities
to
the
fullest
extent
practicable
through
outreach
and
recruitment
activities.
For
Indian
Tribal,
State
and
local
and
Government
recipients,
this
will
include
placing
DBEs
on
solicitation
lists
and
soliciting
them
whenever
they
are
potential
sources.
(
b)
Make
information
on
forthcoming
opportunities
available
to
DBEs
and
arrange
time
frames
for
contracts
and
establish
delivery
schedules,
where
the
requirements
permit,
in
a
way
that
encourages
and
facilitates
participation
by
DBEs
in
the
competitive
process.
This
includes,
whenever
possible,
posting
solicitations
for
bids
or
proposals
for
a
minimum
of
30
calendar
days
before
the
bid
or
proposal
closing
date.
(
c)
Consider
in
the
contracting
process
whether
firms
competing
for
large
contracts
could
subcontract
with
DBEs.
For
Indian
Tribal,
State
and
local
Government
recipients,
this
will
include
dividing
total
requirements
when
economically
feasible
into
smaller
tasks
or
quantities
to
permit
maximum
participation
by
DBEs
in
the
competitive
process.
(
d)
Encourage
contracting
with
a
consortium
of
DBEs
when
a
contract
is
too
large
for
one
of
these
firms
to
handle
individually.
(
e)
Use
the
services
and
assistance
of
the
SBA
and
the
Minority
Business
Development
Agency
of
the
Department
of
Commerce.
(
f)
If
the
prime
contractor
awards
subcontracts,
require
the
prime
contractor
to
take
the
steps
in
paragraphs
(
a)
through
(
e)
of
this
section.

§
33.302
Are
there
any
additional
contract
administration
requirements?
(
a)
A
recipient
must
require
its
prime
contractor
to
pay
its
subcontractor
for
satisfactory
performance
within
a
specific
number
of
days
from
the
prime
contractor's
receipt
of
payment
from
the
recipient.
(
b)
A
recipient
must
be
notified
in
writing
by
its
prime
contractor
prior
to
any
termination
of
a
DBE
subcontractor
for
convenience
by
the
prime
contractor.
(
c)
If
a
DBE
subcontractor
fails
to
complete
work
under
the
subcontract
for
any
reason,
the
recipient
must
require
the
prime
contractor
to
employ
the
six
good
faith
efforts
described
in
§
33.301
if
soliciting
a
replacement
subcontractor.
(
d)
A
recipient
must
require
its
prime
contractor
to
employ
the
six
good
faith
efforts
described
in
§
33.301
even
if
the
prime
contractor
has
achieved
its
fair
share
objectives
under
subpart
D
of
this
part.
(
e)
A
recipient
must
require
its
prime
contractor
to
provide
EPA
Form
6100
 
2
 
DBE
Program
Subcontractor
Participation
Form
to
all
of
its
DBE
subcontractors.
EPA
Form
6100
 
2
gives
a
DBE
subcontractor
the
opportunity
to
describe
the
work
the
DBE
subcontractor
received
from
the
prime
contractor,
how
much
the
DBE
subcontractor
was
paid
and
any
other
concerns
the
DBE
subcontractor
might
have,
for
example
reasons
why
the
DBE
subcontractor
believes
it
was
terminated
by
the
prime
contractor.
DBE
subcontractors
may
send
completed
copies
of
EPA
Form
6100
 
2
directly
to
the
appropriate
EPA
DBE
Coordinator.
(
f)
A
recipient
must
require
its
prime
contractor
to
have
its
DBE
subcontractors
complete
EPA
Form
6100
 
3
 
DBE
Program
Subcontractor
Performance
Form.
A
recipient
must
then
require
its
prime
contractor
to
include
all
completed
forms
as
part
of
the
prime
contractor's
bid
or
proposal
package.
(
g)
A
recipient
must
require
its
prime
contractor
to
complete
and
submit
EPA
Form
6100
 
4
 
DBE
Program
Subcontractor
Utilization
Form
as
part
of
the
prime
contractor's
bid
or
proposal
package.
(
h)
Copies
of
EPA
Form
6100
 
2
 
DBE
Program
Subcontractor
Participation
Form,
EPA
Form
6100
 
3
 
DBE
Program
Subcontractor
Performance
Form
and
EPA
Form
6100
 
4
 
DBE
Program
Subcontractor
Utilization
Form
may
be
obtained
from
EPA
OSDBU's
Home
Page
on
the
Internet
or
directly
from
EPA
OSDBU.

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Proposed
Rules
(
i)
A
recipient
must
ensure
that
each
procurement
contract
it
awards
contains
the
term
and
condition
specified
in
the
Appendix
concerning
compliance
with
the
requirements
of
this
part.
A
recipient
must
also
ensure
that
this
term
and
condition
is
included
in
each
procurement
contract
awarded
by
an
entity
receiving
an
identified
loan
under
a
financial
assistance
agreement
to
capitalize
a
revolving
loan
fund.

§
33.303
Are
there
special
rules
for
loans
under
EPA
financial
assistance
agreements?
A
recipient
of
an
EPA
financial
assistance
agreement
to
capitalize
a
revolving
loan
fund,
such
as
a
State
under
the
CWSRF
or
DWSRF
or
an
eligible
entity
under
the
Brownfields
Cleanup
Revolving
Loan
Fund
program,
must
require
that
borrowers
receiving
identified
loans
comply
with
the
good
faith
efforts
described
in
§
33.301
and
the
contract
administration
requirements
of
§
33.302.
This
provision
does
not
require
that
such
private
and
nonprofit
borrowers
expend
identified
loan
funds
in
compliance
with
any
other
procurement
procedures
contained
in
40
CFR
part
30,
part
31,
or
part
35,
subpart
O,
as
applicable.

§
33.304
Must
a
Native
American
(
either
as
an
individual,
organization,
Tribe
or
Tribal
Government)
recipient
or
prime
contractor
follow
the
six
good
faith
efforts?
(
a)
A
Native
American
(
either
as
an
individual,
organization,
corporation,
Tribe
or
Tribal
Government)
recipient
or
prime
contractor
must
follow
the
six
good
faith
efforts
only
if
doing
so
would
not
conflict
with
existing
Tribal
or
Federal
law,
including
but
not
limited
to
the
Indian
Self­
Determination
and
Education
Assistance
Act
(
25
U.
S.
C.
450e),
which
establishes,
among
other
things,
that
any
federal
contract,
subcontract,
grant,
or
subgrant
awarded
to
Indian
organizations
or
for
the
benefit
of
Indians,
shall
require
preference
in
the
award
of
subcontracts
and
subgrants
to
Indian
organizations
and
to
Indianowned
economic
enterprises.
(
b)
Tribal
organizations
awarded
an
EPA
financial
assistance
agreement
have
the
ability
to
solicit
and
recruit
Indian
organizations
and
Indian­
owned
economic
enterprises
and
give
them
preference
in
the
award
process
prior
to
undertaking
the
six
good
faith
efforts.
Tribal
governments
with
promulgated
tribal
laws
and
regulations
concerning
the
solicitation
and
recruitment
of
Native­
owned
and
other
minority
business
enterprises,
including
womenowned
business
enterprises,
have
the
discretion
to
utilize
these
tribal
laws
and
regulations
in
lieu
of
the
six
good
faith
efforts.
If
the
effort
to
recruit
Indian
organizations
and
Indian­
owned
economic
enterprises
is
not
successful,
then
the
recipient
must
follow
the
six
good
faith
efforts.
All
tribal
recipients
still
must
retain
records
documenting
compliance
in
accordance
with
§
33.501
and
must
report
to
EPA
on
their
accomplishments
in
accordance
with
§
33.502.
(
c)
Any
recipient,
whether
or
not
Native
American,
of
an
EPA
financial
assistance
agreement
for
the
benefit
of
Native
Americans,
is
required
to
solicit
and
recruit
Indian
organizations
and
Indian­
owned
economic
enterprises
and
give
them
preference
in
the
award
process
prior
to
undertaking
the
six
good
faith
efforts.
If
the
efforts
to
solicit
and
recruit
Indian
organizations
and
Indian­
owned
economic
enterprises
is
not
successful,
then
the
recipient
must
follow
the
six
good
faith
efforts.
(
d)
Native
Americans
are
defined
in
§
33.103
to
include
American
Indians,
Eskimos,
Aleuts
and
Native
Hawaiians.

Subpart
D
 
Fair
Share
Objectives
§
33.401
What
does
this
subpart
require?
A
recipient
must
negotiate
with
the
appropriate
EPA
award
official,
or
his/
her
designee,
fair
share
objectives
for
MBE
and
WBE
participation
in
procurement
under
the
financial
assistance
agreements.

§
33.402
Are
there
special
rules
for
loans
under
EPA
financial
assistance
agreements?
A
recipient
of
an
EPA
financial
assistance
agreement
to
capitalize
revolving
loan
funds
must
either
apply
its
own
fair
share
objectives
negotiated
with
EPA
under
§
33.401
to
identified
loans
using
a
substantially
similar
relevant
geographic
market,
or
negotiate
separate
fair
share
objectives
with
entities
receiving
identified
loans,
as
long
as
such
separate
objectives
are
based
on
demonstrable
evidence
of
availability
of
MBEs
and
WBEs
in
accordance
with
this
subpart.
If
procurements
will
occur
over
more
than
one
year,
the
recipient
may
choose
to
apply
the
fair
share
objective
in
place
either
for
the
year
in
which
the
identified
loan
is
awarded
or
for
the
year
in
which
the
procurement
action
occurs.
The
recipient
must
specify
this
choice
in
the
financial
assistance
agreement,
or
incorporate
it
by
reference
therein.

§
33.403
What
is
a
fair
share
objective?
A
fair
share
objective
is
an
objective
based
on
the
capacity
and
availability
of
qualified
MBEs
and
WBEs
in
the
relevant
geographic
market
for
the
procurement
categories
of
construction,
equipment,
services
and
supplies
compared
to
the
number
of
all
qualified
entities
in
the
same
market
for
the
same
procurement
categories,
adjusted,
as
appropriate,
to
reflect
the
level
of
MBE
and
WBE
participation
expected
absent
the
effects
of
discrimination.
A
fair
share
objective
is
not
a
quota.

§
33.404
When
must
a
recipient
negotiate
fair
share
objectives
with
EPA?

A
recipient
must
submit
its
proposed
MBE
and
WBE
fair
share
objectives
and
supporting
documentation
to
EPA
within
90
days
after
its
acceptance
of
its
financial
assistance
award.
EPA
must
respond
in
writing
to
the
recipient's
submission
within
30
days
of
receipt,
either
agreeing
with
the
submission
or
providing
initial
comments
for
further
negotiation.
Failure
to
respond
within
this
time
frame
may
be
considered
as
agreement
by
EPA
with
the
fair
share
objectives
submitted
by
the
recipient.
MBE
and
WBE
fair
share
objectives
must
be
agreed
upon
by
the
recipient
and
EPA
before
funds
may
be
expended
for
procurement
under
the
recipient's
financial
assistance
agreement.

§
33.405
How
does
a
recipient
determine
its
fair
share
objectives?

(
a)
A
recipient
must
determine
its
fair
share
objectives
based
on
demonstrable
evidence
of
the
number
of
qualified
MBEs
and
WBEs
in
the
relevant
geographic
market
for
each
of
the
four
procurement
categories.
The
relevant
geographic
market
is
the
area
of
solicitation
for
the
procurement
as
determined
by
the
recipient.
The
market
may
be
a
geographic
region
of
a
State,
an
entire
State,
or
a
multi­
State
area.
Fair
share
objectives
must
reflect
the
recipient's
determination
of
the
level
of
MBE
and
WBE
participation
it
would
expect
absent
the
effects
of
discrimination.
A
recipient
may
combine
the
four
procurement
categories
into
one
weighted
objective
for
MBEs
and
one
weighted
objective
for
WBEs.
(
b)
Step
1.
A
recipient
must
first
determine
a
base
figure
for
the
relative
availability
of
MBEs
and
WBEs.
The
following
are
examples
of
approaches
that
a
recipient
may
take.
Any
percentage
figure
derived
from
one
of
these
examples
should
be
considered
a
basis
from
which
a
recipient
begins
when
examining
evidence
available
in
its
jurisdiction.
(
1)
MBE
and
WBE
directories
and
Census
Bureau
data.
Separately
determine
the
number
of
qualified
MBEs
and
WBEs
in
the
relevant
geographic
market
for
each
procurement
category
from
a
MBE/
WBE
directory,
such
as
a
bidder's
list.
Using
the
Census
Bureau's
County
Business
Pattern
(
CBP)

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/
Proposed
Rules
data
base,
determine
the
number
of
all
qualified
businesses
available
in
the
market
that
perform
work
in
the
same
procurement
category.
Separately
divide
the
number
of
MBEs
and
WBEs
by
the
number
of
all
businesses
to
derive
a
base
figure
for
the
relative
availability
of
MBEs
and
WBEs
in
the
market.
(
2)
Data
from
a
disparity
study.
Use
a
percentage
figure
derived
from
data
in
a
valid,
applicable
disparity
study
conducted
within
the
preceding
ten
years
comparing
the
available
MBEs
and
WBEs
in
the
relevant
geographic
market
with
their
actual
usage
by
entities
procuring
in
the
categories
of
construction,
equipment,
services
and
supplies.
(
3)
The
objective
of
another
EPA
recipient.
A
recipient
may
use,
as
its
base
figure,
the
fair
share
objectives
of
another
EPA
recipient
if
the
recipient
demonstrates
that
it
will
use
the
same,
or
substantially
similar,
relevant
geographic
market
as
the
other
EPA
recipient.
(
See
§
33.411
for
exemptions
from
fair
share
objective
negotiations).
(
4)
Alternative
methods.
Subject
to
EPA
approval,
other
methods
may
be
used
to
determine
a
base
figure
for
the
overall
objective.
Any
methodology
chosen
must
be
based
on
demonstrable
evidence
of
local
market
conditions
and
be
designed
to
ultimately
attain
an
objective
that
is
rationally
related
to
the
relative
availability
of
MBEs
and
WBEs
in
the
relevant
geographic
market.
(
c)
Step
2.
After
calculating
a
base
figure,
a
recipient
must
examine
the
evidence
available
in
its
jurisdiction
to
determine
what
adjustment,
if
any,
is
needed
to
the
base
figure
in
order
to
arrive
at
the
fair
share
objective.
(
1)
There
are
many
types
of
evidence
that
must
be
considered
when
adjusting
the
base
figure.
These
include:
(
i)
The
current
capacity
of
MBEs
and
WBEs
to
perform
contract
work
under
EPA
financial
assistance
agreements,
as
measured
by
the
volume
of
work
MBEs
and
WBEs
have
performed
in
recent
years;
(
ii)
Evidence
from
disparity
studies
conducted
anywhere
within
the
recipient's
jurisdiction,
to
the
extent
it
is
not
already
accounted
for
in
the
base
figure;
and
(
iii)
If
the
base
figure
is
the
objective
of
another
EPA
recipient,
it
must
be
adjusted
for
differences
in
the
local
market
and
the
recipient's
contracting
program.
(
2)
A
recipient
may
also
consider
available
evidence
from
related
fields
that
affect
the
opportunities
for
MBEs
and
WBEs
to
form,
grow
and
compete.
These
include,
but
are
not
limited
to:
(
i)
Statistical
disparities
in
the
ability
of
MBEs
and
WBEs
to
get
the
financing,
bonding
and
insurance
required
to
participate;
and
(
ii)
Data
on
employment,
selfemployment
education,
training
and
union
apprenticeship
programs,
to
the
extent
it
can
be
related
to
the
opportunities
for
MBEs
and
WBEs
to
perform
in
the
program.
(
3)
If
a
recipient
attempts
to
make
an
adjustment
to
its
base
figure
to
account
for
the
continuing
effects
of
past
discrimination
(
often
called
the
``
but
for''
factor)
or
the
effects
of
another
ongoing
MBE/
WBE
program,
the
adjustment
must
be
based
on
demonstrable
evidence
that
is
logically
and
directly
related
to
the
effect
for
which
the
adjustment
is
sought.

§
33.406
May
a
recipient
designate
a
lead
agency
for
fair
share
objective
negotiation
purposes?

If
an
Indian
Tribal,
State
or
local
Government
has
more
than
one
agency
that
receives
EPA
financial
assistance,
the
agencies
within
that
government
may
designate
a
lead
agency
to
negotiate
MBE
and
WBE
fair
share
objectives
with
EPA
to
be
used
by
each
of
the
agencies.
Each
agency
must
otherwise
negotiate
with
EPA
separately
its
own
MBE
and
WBE
fair
share
objectives.

§
33.407
How
long
do
MBE
and
WBE
fair
share
objectives
remain
in
effect?

Once
MBE
and
WBE
fair
share
objectives
have
been
negotiated,
they
will
remain
in
effect
for
three
fiscal
years
unless
there
are
significant
changes
to
the
data
supporting
the
fair
share
objectives.
The
fact
that
a
disparity
study
utilized
in
negotiating
fair
share
objectives
has
become
more
than
ten
years
old
during
the
three
year
period
does
not
by
itself
constitute
a
significant
change
requiring
renegotiation.

§
33.408
May
a
recipient
use
race
and/
or
gender
conscious
measures
as
part
of
this
program?

(
a)
Should
the
good
faith
efforts
described
in
subpart
C
of
this
part
or
other
race
and/
or
gender
neutral
measures
prove
to
be
inadequate
to
achieve
an
established
fair
share
objective,
a
recipient
and
its
prime
contractor
are
encouraged,
but
not
required,
to
take
reasonable
race
and/
or
gender
conscious
action,
subject
to
§
33.409,
to
more
closely
achieve
the
fair
share
objectives.
(
b)
A
recipient
must
notify
EPA
in
advance
of
any
race
and/
or
gender
conscious
action
it
plans
to
take.
Any
use
of
race
and/
or
gender
conscious
efforts
must
not
result
in
the
selection
of
an
unqualified
MBE
or
WBE.
§
33.409
May
a
recipient
use
quotas
as
part
of
this
program?

A
recipient
is
not
permitted
to
use
quotas
in
procurements
under
EPA's
8%
or
10%
statute.

§
33.410
Can
a
recipient
be
penalized
for
failing
to
meet
its
fair
share
objectives?

A
recipient
cannot
be
penalized,
or
treated
by
EPA
as
being
in
noncompliance
with
this
subpart,
solely
because
its
MBE
or
WBE
participation
does
not
meet
its
applicable
fair
share
objective.
However,
EPA
may
take
remedial
action
under
§
33.105
for
a
recipient's
failure
to
comply
with
other
provisions
of
this
part,
including,
but
not
limited
to,
the
good
faith
efforts
requirements
described
in
subpart
C
of
this
part.

§
33.411
Who
may
be
exempted
from
this
subpart?

(
a)
General.
A
recipient
of
an
EPA
financial
assistance
agreement
in
the
amount
of
$
250,000
or
less
for
any
single
assistance
agreement,
or
of
more
than
one
financial
assistance
agreement
with
a
combined
total
of
$
250,000
or
less
in
any
one
fiscal
year,
is
not
required
to
apply
the
fair
share
objective
requirements
of
this
subpart.
This
provision
does
not
exempt
such
recipients
from
any
other
requirements
of
this
part.
(
b)
Clean
Water
State
Revolving
Fund
(
CWSRF)
Program,
Drinking
Water
State
Revolving
Fund
(
DWSRF)
Program,
and
Brownfields
Cleanup
Revolving
Loan
Fund
(
BCRLF)
Program
identified
loan
recipients.
A
recipient
under
the
CWSRF,
DWSRF,
or
BCRLF
Program
is
not
required
to
apply
the
fair
share
objective
requirements
of
this
subpart
to
an
entity
receiving
an
identified
loan
in
an
amount
of
$
250,000
or
less
or
to
an
entity
receiving
more
than
one
identified
loan
with
a
combined
total
of
$
250,000
or
less
in
any
one
fiscal
year.
This
provision
does
not
exempt
such
recipients
from
any
other
requirements
of
this
part.
(
c)
Tribal
and
Intertribal
Consortia
recipients
of
program
grants
which
can
be
included
in
Performance
Partnership
Grants
(
PPGs)
under
40
CFR
Part
35,
Subpart
B.
Tribal
and
Intertribal
consortia
recipients
of
PPG
eligible
grants
are
not
required
to
apply
the
fair
share
objective
requirements
of
this
subpart
to
those
grants.
(
d)
Technical
Assistance
Grant
(
TAG)
Program
Recipients.
A
recipient
of
a
TAG
is
not
required
to
apply
the
fair
share
objective
requirements
of
this
subpart
to
that
grant.
This
provision
does
not
exempt
such
recipients
from
any
other
requirements
of
this
part.

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/
Vol.
68,
No.
142
/
Thursday,
July
24,
2003
/
Proposed
Rules
§
33.412
Must
an
Insular
Area
or
Indian
Tribal
Government
recipient
negotiate
fair
share
objectives?

The
requirements
in
this
subpart
regarding
the
negotiation
of
fair
share
objectives
will
not
apply
to
an
Insular
Area
or
Indian
Tribal
Government
recipient
until
three
calendar
years
after
the
effective
date
of
this
part.
Furthermore,
in
accordance
with
§
33.411(
c),
tribal
and
intertribal
consortia
recipients
of
program
grants
which
can
be
included
in
Performance
Partnership
Grants
(
PPGs)
under
40
CFR
part
35,
subpart
B
are
not
required
to
apply
the
fair
share
objective
requirements
of
this
subpart
to
such
grants.

Subpart
E
 
Recordkeeping
and
Reporting
§
33.501
What
are
the
recordkeeping
requirements
of
this
part?

(
a)
A
recipient,
including
those
recipients
exempted
under
§
33.411
from
the
requirement
to
apply
the
fair
share
objectives,
must
maintain
all
records
documenting
its
compliance
with
the
requirements
of
this
part,
including
documentation
of
its,
and
its
prime
contractor's,
good
faith
efforts
and
data
relied
upon
in
formulating
its
fair
share
objectives.
Such
records
must
be
retained
in
accordance
with
applicable
record
retention
requirements
for
the
recipient's
financial
assistance
agreement.
(
b)
A
recipient
of
a
Continuing
Environmental
Program
Grant
or
other
annual
grant
must
create
and
maintain
a
bidders
list.
Such
a
list
must
only
be
kept
until
the
grant
project
period
has
expired
and
the
recipient
is
no
longer
receiving
EPA
funding
under
the
grant.
In
addition,
a
recipient
of
an
EPA
financial
assistance
agreement
to
capitalize
a
revolving
loan
fund
also
must
require
entities
receiving
identified
loans
to
create
and
maintain
a
bidders
list
if
the
recipient
of
the
loan
is
subject
to,
or
chooses
to
follow,
competitive
bidding
requirements.
(
See
e.
g.,
§
33.303).
The
purpose
of
a
bidders
list
is
to
provide
the
recipient
and
entities
receiving
identified
loans
who
conduct
competitive
bidding
with
as
accurate
of
a
database
as
possible
about
the
universe
of
MBE/
WBE
and
non­
MBE/
WBE
prime
and
subcontractors.
Such
a
list
must
only
be
kept
until
the
project
period
for
the
identified
loan
has
ended.
The
following
information
must
be
obtained
from
all
prime
and
subcontractors:
entity
name;
entity
address;
entity's
status
as
an
MBE/
WBE.
§
33.502
What
are
the
reporting
requirements
of
this
part?
MBE
and
WBE
participation
must
be
reported
by
recipients,
including
those
recipients
exempted
under
§
33.411
from
the
requirement
to
apply
the
fair
share
objectives,
on
EPA
Form
5700
 
52A
on
a
quarterly
basis,
except
for
recipients
of
Continuing
Environmental
Program
Grants,
and
institutions
of
higher
education,
hospitals
and
other
non­
profit
organizations
receiving
financial
assistance
agreements
under
40
CFR
part
30,
which
report
on
an
annual
basis.
Recipients
of
financial
assistance
agreements
capitalizing
revolving
loan
funds,
including
those
exempted
by
§
33.411
from
the
requirement
of
applying
the
fair
share
objectives,
will
continue
to
report
quarterly.
Recipients
of
financial
assistance
agreements
that
capitalize
revolving
loan
programs
must
require
entities
receiving
identified
loans
to
submit
their
MBE
and
WBE
participation
reports
on
a
quarterly
basis
to
the
financial
assistance
agreement
recipient,
rather
than
to
EPA.

§
33.503
How
does
a
recipient
calculate
MBE
and
WBE
participation
for
reporting
purposes?
(
a)
General.
Amounts
of
MBE
and
WBE
participation
are
calculated
as
a
percentage
of
total
financial
assistance
agreement
project
procurement
costs,
which
include
the
match
portion
of
the
project
costs,
if
any.
For
recipients
of
financial
assistance
agreements
that
capitalize
revolving
loan
programs,
the
total
amount
is
the
total
procurement
dollars
in
the
amount
of
identified
loans
equal
to
the
capitalization
grant
amount.
(
b)
Ineligible
project
costs.
If
all
project
costs
attributable
to
MBE
and
WBE
participation
are
not
eligible
for
funding
under
the
EPA
financial
assistance
agreement,
the
recipient
may
choose
to
report
the
percentage
of
MBE
and
WBE
participation
based
on
the
total
eligible
and
non­
eligible
costs
of
the
project.
(
c)
Joint
ventures.
For
joint
ventures,
MBE
and
WBE
participation
consists
of
the
portion
of
the
dollar
amount
of
the
joint
venture
attributable
to
the
MBE
or
WBE.
If
an
MBE's
or
WBE's
risk
of
loss,
control
or
management
responsibilities
are
not
commensurate
with
its
share
of
the
profit,
the
Agency
may
direct
an
adjustment
in
the
percentage
of
MBE
or
WBE
participation.
(
d)
Central
purchasing
or
procurement
centers.
A
recipient
must
report
MBE
and
WBE
participation
from
its
central
purchasing
or
procurement
centers.
(
e)
Brokers.
A
recipient
may
not
count
expenditures
to
a
MBE
or
WBE
that
acts
merely
as
a
broker
or
passive
conduit
of
funds,
without
performing,
managing,
or
supervising
the
work
of
its
contract
or
subcontract
in
a
manner
consistent
with
normal
business
practices.
(
1)
Presumption.
If
50%
or
more
of
the
total
dollar
amount
of
a
MBE
or
WBE's
prime
contract
is
subcontracted
to
a
non­
DBE,
the
MBE
or
WBE
prime
contractor
will
be
presumed
to
be
a
broker,
and
no
MBE
or
WBE
participation
may
be
reported.
(
2)
Rebuttal.
The
MBE
or
WBE
prime
contractor
may
rebut
this
presumption
by
demonstrating
that
its
actions
are
consistent
with
normal
practices
for
prime
contractors
in
its
business
and
that
it
will
actively
perform,
manage
and
supervise
the
work
under
the
contract.
(
f)
MBE
or
WBE
truckers/
haulers.
A
recipient
may
count
expenditures
to
an
MBE
or
WBE
trucker/
hauler
only
if
the
MBE
or
WBE
trucker/
hauler
is
performing
a
commercially
useful
function.
The
following
factors
should
be
used
in
determining
whether
an
MBE
or
WBE
trucker/
hauler
is
performing
a
commercially
useful
function:
(
1)
The
MBE
or
WBE
must
be
responsible
for
the
management
and
supervision
of
the
entire
trucking/
hauling
operation
for
which
it
is
responsible
on
a
particular
contract,
and
there
cannot
be
a
contrived
arrangement
for
the
purpose
of
meeting
MBE
or
WBE
objectives.
(
2)
The
MBE
or
WBE
must
itself
own
and
operate
at
least
one
fully
licensed,
insured,
and
operational
truck
used
on
the
contract.

Appendix
to
Part
33
 
Term
and
Condition
Each
procurement
contract
signed
by
an
EPA
financial
assistance
agreement
recipient,
including
those
for
an
identified
loan
under
an
EPA
financial
assistance
agreement
capitalizing
a
revolving
loan
fund,
must
include
the
following
term
and
condition:
The
contractor
shall
not
discriminate
on
the
basis
of
race,
color,
national
origin
or
sex
in
the
performance
of
this
contract.
The
contractor
shall
carry
out
applicable
requirements
of
40
CFR
part
33
in
the
award
and
administration
of
contracts
awarded
under
EPA
financial
assistance
agreements.
Failure
by
the
contractor
to
carry
out
these
requirements
is
a
material
breach
of
this
contract
which
may
result
in
the
termination
of
this
contract
or
other
legally
available
remedies.

PART
35
 
[
AMENDED]

Subpart
E
 
[
Amended]

6.
The
authority
citation
for
part
35,
subpart
E,
continues
to
read
as
follows:

Authority:
Secs.
109(
b),
201
through
205,
207,
208(
d),
210
through
212,
215
through
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Federal
Register
/
Vol.
68,
No.
142
/
Thursday,
July
24,
2003
/
Proposed
Rules
217,
304(
d)(
3),
313,
501,
511,
and
516(
b)
of
the
Clean
Water
Act,
as
amended,
33
U.
S.
C.
1251
et
seq.

§
35.936
 
7
[
Removed]

7.
Section
35.936
 
7
is
removed.

§
35.938
 
9
[
Amended]

Section
35.938
 
9
is
amended
by
removing
and
reserving
paragraph
(
b)(
2).

Subpart
K
 
[
Amended]

8.
The
authority
citation
for
part
35,
subpart
K,
continues
to
read
as
follows:

Authority:
Sections
205(
m),
501(
a)
and
title
VI
of
the
Clean
Water
Act,
as
amended,
42
U.
S.
C.
1285(
m),
33
U.
S.
C.
1361(
a),
33
U.
S.
C.
1381
 
1387.

§
35.3145
[
Amended]

9.
Section
35.3145(
d)
is
removed
and
reserved.

§
35.3145
[
Amended]

10.
Section
35.3145(
e)
is
removed.
Subpart
L
 
[
Amended]

11.
The
authority
citation
for
part
35,
subpart
L,
continues
to
read
as
follows:

Authority:
Section
1452
of
the
Safe
Drinking
Water
Act,
as
amended,
42
U.
S.
C.
300j
 
12.

§
35.3575
[
Amended]
12.
Section
35.3575(
d)
is
removed
and
reserved.

Subpart
M
 
[
Amended]

13.
The
authority
citation
for
part
35,
subpart
M,
continues
to
read
as
follows:

Authority:
42
U.
S.
C.
9617(
e);
sec.
9(
g),
E.
O.
12580,
52
FR
2923,
3
CFR,
1987
Comp.,
p.
193.

§
35.4170
[
Amended]
14.
Section
35.4170(
b)
is
removed
and
reserved.

§
35.4205
[
Amended]
15.
Section
35.4205(
g)
is
removed.

§
35.4240
[
Amended]
16.
Section
35.4240(
e)
is
removed
and
reserved.
Subpart
O
 
[
Amended]

17.
The
authority
citation
for
part
35,
subpart
O,
continues
to
read
as
follows:

Authority:
42
U.
S.
C.
9601
et
seq.

§
35.6015
[
Amended]

18.
Sections
35.6015(
a)(
26)
and
(
a)(
54)
are
removed
and
reserved.

§
35.6580
[
Removed]

19.
Section
35.6580
is
removed.

§
35.6665
[
Amended]

20.
Section
35.6665(
b)
is
removed.

PART
40
 
[
AMENDED]

21.
The
authority
citation
for
part
40
continues
to
read
as
follows:

Authority:
Cited
in
§
40.110.

§
40.145
 
3
[
Amended]

22.
Section
40.145
 
3(
c)
is
removed
and
reserved.

[
FR
Doc.
03
 
18002
Filed
7
 
23
 
03;
8:
45
am]

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