Rule: Participation by Disadvantaged Business Enterprises in Procurement Under EPA Financial Assistance Agreements

15904 Federal Register / Vol. 73, No.
59 / Wednesday, March 26, 2008 / Rules and Regulations
which guides the Coast Guard in person or vessel is prohibited unless Enterprise program in 7 years through
complying with the National authorized by the Captain of the Port subsequent rulemaking. This rule also
Environmental Policy Act of 1969 (COTP), Boston or the COTP’s revises EPA’s Minority Business
(NEPA) (42 U.S.C. 4321–4370f), and designated representative. Enterprise (MBE) and Women’s
have concluded that there are no factors (2) The safety zone is closed to all Business Enterprise (WBE) program and
in this case that would limit the use of vessel traffic, except as may be renames it EPA’s Disadvantaged
a categorical exclusion under section permitted by the COTP or the COTP’s Business Enterprise (DBE) Program. EPA
2.B.2 of the Instruction. Therefore, this designated representative. is removing existing MBE/WBE specific
rule is categorically excluded, under (3) Vessel operators desiring to enter provisions in regulations for grants and
figure 2–1, paragraph (34)(g), of the or operate within the safety zone must agreements with institutions of higher
Instruction, from further environmental contact the COTP or the COTP’s education, hospitals, and other non-
documentation. Under figure 2–1, designated representative to obtain profit organizations; and uniform
paragraph (34)(g), of the Instruction, an permission by calling the Sector Boston administrative requirements for grants
‘‘Environmental Analysis Check List’’ Command Center at 617–223–5761. and cooperative agreements to state and
and a ‘‘Categorical Exclusion Vessel operators given permission to local governments, state and local
Determination’’ are not required for this enter or operate in the safety zone must assistance, and research and
rule because it concerns an emergency comply with all directions given to demonstration grants, and is
situation of less than 1 week in them by the COTP or the COTP’s consolidating and adding to these
duration. designated representative. provisions in this new regulation. This
Dated: March 12, 2008. rule affects only procurements under
List of Subjects in 33 CFR Part 165 EPA financial assistance agreements.
Gail P. Kulisch,
Harbors, Marine safety, Navigation This rule does not apply to direct
Captain, U.S. Coast Guard, Captain of the
(water), Reporting and recordkeeping Port, Sector Boston.
Federal procurement actions. If you are
requirements, Security measures, and a recipient of an EPA financial
[FR Doc. E8–6149 Filed 3–25–08; 8:45 am]
Waterways. assistance agreement or an entity
BILLING CODE 4910–15–P
■ For the reasons discussed in the receiving an identified loan under a
preamble, the Coast Guard amends 33 financial assistance agreement
CFR part 165 as follows: capitalizing a revolving loan fund, this
ENVIRONMENTAL PROTECTION rule may affect you.
PART 165—REGULATED NAVIGATION AGENCY DATES: This final rule is effective May
AREAS AND LIMITED ACCESS AREAS 27, 2008.
40 CFR Parts 30, 31, 33, 35, and 40
■ 1. The authority citation for part 165 ADDRESSES: EPA has established a
[Docket ID NO. EPA–HQ–OA–2002–0001; docket for this action under Docket ID
continues to read as follows: FRL–8545–9]
No. EPA–HQ–OA–2002–0001. All
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. documents in the docket are listed on
RIN 2090–AA38
Chapter 701; 50 U.S.C. 191, 195; 33 CFR
1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L.
the www.regulations.gov Web site.
Participation by Disadvantaged Although listed in the index, some
107–295, 116 Stat. 2064; Department of
Homeland Security Delegation No. 0170.1. Business Enterprises in Procurement information is not publicly available,
Under Environmental Protection e.g., CBI or other information whose
■ 2. Add temporary § 165.T01–0173 to Agency (EPA) Financial Assistance disclosure is restricted by statute.
read as follows: Agreements Certain other material, such as
§ 165.T01–0173 Safety Zone: Longwood AGENCY: Environmental Protection copyrighted material, is not placed on
Events Wedding Fireworks Display, Boston Agency. the Internet and will be publicly
Harbor, Boston, MA. available only in hard copy form.
ACTION: Final rule.
(a) Location. The following area is a Publicly available docket materials are
safety zone: SUMMARY: This action will harmonize available either electronically through
All waters of Boston Harbor, from EPA’s statutory Disadvantaged Business www.regulations.gov or in hard copy at
surface to bottom, within a four Enterprise procurement objectives with the HQ EPA Docket Center, EPA/DC,
hundred (400) yard radius of the the United States Supreme Court’s EPA West, Room 3334, 1301
fireworks launch site located in Boston decision in Adarand Constructors, Inc. Constitution Ave., NW., Washington,
Harbor at approximate position v. Pena, 515 U.S. 200 (1995). In that DC 20004. The Public Reading Room is
42°21′42″ N, 071°2′36″ W. case, the Supreme Court extended strict open from 8:30 a.m. to 4:30 p.m.,
(b) Effective Date. This rule is judicial scrutiny to federal programs Monday through Friday, excluding legal
effective from 8:45 p.m. through 9:45 that use racial or ethnic criteria as a holidays. The telephone number for the
p.m. on March 29, 2008. basis for decision making. Remedying Public Reading Room is (202) 566–1744,
(c) Definitions. (1) Designated discrimination is recognized as a and the telephone number for the Office
representative means a Coast Guard compelling government interest, and of Environmental Information is (202)
Patrol Commander, including a Coast this rule is promulgated on the 566–1752.
Guard coxswain, petty officer, or other understanding that the statutory FOR FURTHER INFORMATION CONTACT:
officer operating a Coast Guard vessel or provisions authorizing its adoption were Kimberly Patrick, Attorney Advisor,
a Federal, State, or local officer enacted for that remedial purpose. This Office of the Administrator, Office of
designated by or assisting the Captain of rule sets forth a narrowly tailored EPA Small and Disadvantaged Business
the Port (COTP). program to serve the compelling Utilization (OSDBU) by phone at (202)
sroberts on PROD1PC70 with RULES
(2) [Reserved] government interest of remedying past 566–2605, by e-mail at

(d) Regulations. (1) In accordance and current racial discrimination patrick.kimberly@epa.gov, or by fax at
with the general regulations in section through agency-wide DBE procurement (202) 566–0548; or Cassandra Freeman,
165.23 of this part, entry into or objectives. EPA intends to evaluate the Deputy Director, Office of the
movement within this zone by any propriety of the Disadvantaged Business Administrator, OSDBU by phone at
VerDate Aug<31>2005 18:03 Mar 25, 2008 Jkt 214001 PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 E:\FR\FM\26MRR1.SGM 26MRR1
Federal Register / Vol. 73, No. 59 / Wednesday, March 26, 2008 / Rules and Regulations 15905
(202) 566–1968, by e-mail at authorized programs, including grants, loans availability analyses showing the
freeman.cassandra@epa.gov, or by fax at and contracts for wastewater treatment and availability of MBEs or WBEs in the
(202) 566–0266. Both can be reached by leaking underground storage tanks grants, be financial assistance recipient’s relevant
mail to OSDBU, U.S. Environmental made available to business concerns or other geographic buying market. These goals
organizations owned or controlled by socially
Protection Agency, 1200 Pennsylvania and economically disadvantaged individuals
do not operate as quotas.
Avenue, NW., mail code 1230T, (within the meaning of section 8(a)(5) and (6)
2. Using the ‘‘Six Positive Efforts’’ or
Washington, DC 20460. of the Small Business Act (15 U.S.C. 637(a)(5) ‘‘Six Affirmative Steps’’: The ‘‘Six
SUPPLEMENTARY INFORMATION: The and (6)), including historically black colleges Positive Efforts’’ or ‘‘Six Affirmative
contents of this final rule are listed in and universities. For purposes of this section, Steps’’ are measures designed to ensure
the following outline: economically and socially disadvantaged MBEs and WBEs are considered in a
individuals shall be deemed to include financial assistance recipient’s
Contents of the Final Rule women * * *; and procurement practices, and they contain
I. General Information 2. Public Law 101–549, Title X of the measures a recipient may undertake to
A. Does This Rule Apply to Me? Clean Air Act Amendments of 1990 (42 make procurements more open to MBEs
B. What are the Statutory Authorities for U.S.C. 7601 note) (‘‘EPA’s 10% and WBEs.
this Final Rule? statute’’), which states: 3. Reporting Accomplishments: Under
II. Background the current MBE/WBE program,
III. Overview of Final Rule In providing for any research relating to the
recipients of EPA financial assistance
IV. Summary of Response to Public requirements of the amendments made by the
Clean Air Act Amendments which use funds agreements are required to report on
Comments their accomplishments with the
V. Statutory and Executive Order Reviews of the Environmental Protection Agency, the
A. Executive Order 12866: Regulatory Administrator of the Environmental program using EPA Form 5700–52A.
Planning and Review Protection Agency shall, to the extent Reporting is the tool we use to assess
B. Paperwork Reduction Act practicable, require that not less than 10 whether or not the program is effective
C. Regulatory Flexibility Act percent of the total Federal funding for such and actually translating into increased
D. Unfunded Mandates Reform Act research will be made available to opportunities for MBEs and WBEs.
E. Executive Order 13132: Federalism disadvantaged business concerns. Nothing in EPA’s MBE/WBE Program is currently
F. Executive Order 13175: Consultation this title shall permit or require the use of implemented through:
and Coordination With Indian Tribal quotas or a requirement that has the effect of (1) Existing MBE and WBE provisions
Governments a quota in determining eligibility * * *
scattered throughout 40 CFR parts 30,
G. Executive Order 13045: Protection of Other legal authorities and Executive 31, 35 and 40;
Children From Environmental Health Orders regarding this final rule include (2) Grant conditions; and
and Safety Risks Public Law 99–499, the Superfund (3) The Agency’s ‘‘Guidance for the
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Amendments and Reauthorization Act Utilization of Small, Minority, and
Distribution, or Use of 1986; Public Law 100–590, the Small Women’s Business Enterprises in
I. National Technology Transfer and Business Administration Assistance Agreements.’’
Advancement Act of 1995 Reauthorization and Amendment Act of In 1995, the Supreme Court’s decision
J. Executive Order 12898: Federal Actions 1988; Executive Order 12138, ‘‘Creating in Adarand Constructors, Inc. v.
To Address Environmental Justice in a National Women’s Business Enterprise Federico Pena, Secretary of
Minority Populations and Low-Income Policy and Prescribing Arrangements for Transportation, 515 U.S. 200
Populations Developing, Coordinating and (‘‘Adarand’’), extended strict judicial
K. Congressional Review Act Implementing a National Program for scrutiny to federal affirmative action
I. General Information Women’s Business Enterprise,’’ issued programs that use racial or ethnic
May 18, 1979; Executive Order 11625, criteria as a basis for decisionmaking. In
A. Does This Rule Apply to Me? ‘‘Prescribing Additional Arrangements other words, such programs must be
If you are a recipient of an EPA for Developing and Coordinating a based on a compelling governmental
financial assistance agreement, or an National Program for Minority Business interest, for example, remedying the
entity receiving an identified loan under Enterprise,’’ issued October 13, 1971; effects of discrimination, and must be
a financial assistance agreement and Executive Order 12432, ‘‘Minority narrowly tailored to accomplish that
capitalizing a revolving loan fund, or a Business Enterprise Development,’’ interest.
minority-owned, woman-owned, or issued July 14, 1983. Following the Adarand decision, in
small business, this rule may affect you. 1996, the Department of Justice (DOJ)
II. Background began a review of affirmative action
If you have any questions regarding the
applicability of this action to a EPA’s current Minority Business programs in the Federal Government. In
particular entity, consult the person Enterprise/Woman-owned Business response to this review, the Department
listed in the preceding FOR FURTHER Enterprise (‘‘MBE/WBE’’) program has of Transportation (DOT), whose DBE
INFORMATION CONTACT section. three major components designed to program mirrored EPA’s MBE/WBE
ensure that minority and women-owned program, revised its program for
B. What Are the Statutory Authorities businesses have the opportunity to participation of DBEs in procurements
for This Final Rule? participate in procurements funded by under DOT’s financial assistance
EPA’s primary statutory authorities EPA financial assistance agreements. agreements to comply with the Adarand
for this final rule are: Those components are as follows: decision (See 64 FR 5096). This final
1. Public Law 102–389 (42 U.S.C. 1. Negotiating Fair Share Goals: The rule reflects EPA’s efforts to similarly
4370d), a 1993 appropriations act current MBE/WBE program requires all comply.
(‘‘EPA’s 8% statute’’), which provides: recipients of EPA financial assistance Remedying discrimination is
The Administrator of the Environmental

agreements to negotiate goals with the recognized as a compelling government
Protection Agency shall, hereafter, to the Agency for the utilization of MBEs/ interest, and this rule is promulgated on
fullest extent possible, ensure that at least 8 WBEs for procurements funded by EPA the understanding that the statutory
per centum of Federal funding for prime and financial assistance agreements. The provisions authorizing its adoption were
subcontracts awarded in support of goals are based on disparity studies or enacted for that remedial purpose. This
15906 Federal Register / Vol. 73, No. 59 / Wednesday, March 26, 2008 / Rules and Regulations
rule sets forth a narrowly tailored EPA negotiations. The specific changes are and controlled by socially and
program to serve the compelling summarized as follows: economically disadvantaged
government interest of remedying past individuals. However, the statutory
1. Certification
and current racial discrimination authority for EPA’s DBE program
through agency-wide DBE procurement Under the current MBE/WBE program requires ownership or control, Public
objectives. EPA intends to evaluate the EPA recognizes Small Business Law 102–389); and
propriety of the Disadvantaged Business Administration (SBA) certifications, or 5. Women-owned business
Enterprise program in 7 years through certifications by a State or other Federal enterprises.
subsequent rulemaking Agency, or self-certifications. EPA EPA certifications will last for three
This final rule requires recipients to currently does not require WBEs to be years as long as the certified entity files
use race/gender-neutral measures to certified. an annual affidavit affirming that no
ensure DBEs have meaningful Under the new DBE program changes in circumstances have occurred
opportunities to bid on recipient- promulgated today, in order to be which affected the entity’s status as an
counted as an MBE or WBE under an MBE or WBE. Appeal procedures are
sponsored procurements. It does not
EPA financial assistance agreement, an provided for entities denied MBE or
require recipients to use race/gender-
entity will have to be certified as such. WBE certification, or anyone who
conscious measures. However, if a
EPA will require an MBE/WBE to first disagrees with EPA’s decision to certify
recipient elects to use such measures,
seek certification by a federal agency an entity as an MBE or WBE.
the recipient should satisfy itself that
(e.g., the Small Business Administration
the measure meets all applicable legal 2. Six Good Faith Efforts
(SBA), the Department of Transportation
requirements, including those The good faith efforts are activities by
(DOT)), or by a State, locality, Indian
established in Adarand. Because this a recipient and its prime contractor to
Tribe, or independent private
rule only requires race/gender-neutral increase DBE awareness of procurement
organization provided their applicable
measures, it should not be subject to opportunities through race/gender
criteria match those under section 8(a)
strict judicial scrutiny. Even so, we neutral efforts. Race/gender neutral
(5) and (6) of the Small Business Act
believe this rule is narrowly tailored to efforts are ones which increase
and SBA’s applicable 8(a) Business
achieve a compelling governmental awareness of contracting opportunities
Development Program regulations. EPA
interest consistent with Adarand. in general, including outreach,
will only consider certifying firms that
EPA worked collaboratively on this cannot get certified by one of these recruitment and technical assistance.
rulemaking with various program offices entities. Requiring firms to first seek For purposes of simplification, EPA has
within the Agency, the EPA Office of certification from other sources is combined the ‘‘Six Positive Efforts’’ of
General Counsel, and the EPA Regions. beneficial for the business entity 40 CFR 30.44 (b) applicable to
We also held discussions with other because an EPA certification is limited institutions of higher education,
Federal agencies, including SBA and in that it would only be accepted by hospitals and other non-profit
DOT whose DBE programs are in some EPA. Certifications from other sources organizations with the ‘‘Six Affirmative
ways similar to ours, or have undergone have broader applications. Also, Steps’’ of 40 CFR 31.36(e) applicable to
changes similar to the ones we are requiring firms to first seek certification State, Local and Indian Tribal
implementing. EPA has also from other sources reduces the burden Government recipients and renamed
collaborated with the Civil Rights on the Agency associated with them the six ‘‘good faith efforts.’’.
Division of DOJ throughout the processing certifications.
rulemaking process. 3. Contract Administration
The creation and implementation of Requirements
III. Overview of Final Rule an EPA certification program is
necessary because the statutory The rule adds additional contract
This rulemaking removes all of EPA’s authority for EPA’s program includes administration requirements which are
current MBE/WBE fair share objectives classifications of businesses that are not intended to prevent any ‘‘bait and
and good faith efforts regulatory currently certified by other sources. switch’’ tactics at the subcontract level
provisions and replaces them with DBE Businesses that fall within these by prime contractors which may
provisions to be codified in the new 40 classifications would potentially have circumvent the spirit of the DBE
CFR part 33. In addition, this rule no other option for certification to Program as well as other related
supersedes inconsistent provisions of participate in EPA’s DBE program. EPA requirements. Some of these
previous guidance documents for EPA’s anticipates that the following types of requirements include provisions
former MBE and WBE Program, entities will have to be considered for intended to ensure that subcontractors
including, but not limited to, EPA’s certification by EPA: receive prompt payment from prime
‘‘Guidance for Utilization of Small, 1. Disabled American-owned firms; contractors. In addition, this proposal
Minority, and Women’s Business 2. Private and voluntary organizations would require a recipient to be notified
Enterprises in Procurement Under controlled by individuals who are in writing before its prime contractor
Assistance Agreements’’ (the 1997 socially and economically could terminate a DBE subcontractor for
Guidance), 62 FR 45645. disadvantaged; convenience and then perform the work
There are six substantive changes this 3. Women-owned and minority itself. Furthermore, when a DBE
rule will make to the way the program owned-businesses who cannot get subcontractor is terminated or fails to
currently operates. Those changes certified under DOT or SBA size criteria complete its work under the subcontract
involve: (1) Certification of minority and (EPA does not have size criteria) or by for any reason, the recipient must
women-owned businesses; (2) the six a State Government, local Government, require the prime contractor to make
good faith efforts; (3) contract Indian Tribal Government or good faith efforts if the prime contractor
administration requirements; (4) independent private organization; chooses to hire another subcontractor. A
negotiation of fair share goals; (5) 4. Businesses owned or controlled by recipient must also require its prime
recordkeeping and reporting socially and economically contractor to continue to make the good
requirements; and (6) new requirements disadvantaged individuals (note—SBA faith efforts even if the fair share
for Tribal and insular area fair share and DOT require an entity to be owned objectives in subpart D of the rule have
been met. Finally, this rule provides for unique nature of eligible recipients. this requirement for recipients receiving
three new forms which are required if Superfund Technical Assistance Grants grants or loans of $250,000 or less for
there are DBE subcontractors involved (TAG’s) would be exempt due to the any single assistance agreement or loan,
in a procurement. nature of their funding cycles. A or of more than one financial assistance
recipient under the Clean Water State agreement or loan with a combined total
4. Negotiation of Fair Share Goals (and
Revolving Fund, the Drinking Water of $250,000 or less in EPA funds in any
$250,000 Exemptions)
State Revolving Fund, and the one year.
This rule codifies EPA’s procedures Brownfields Clean-Up Revolving Loan
for negotiating fair share goals with Fund is not required to apply the fair 6. New Requirement for Tribal and
financial assistance recipients. The share objective requirements to an entity Trust Territory Fair Share Negotiations
process for such negotiations is receiving an identified loan in an EPA does not currently negotiate fair
currently implemented through amount of $250,000 or less. share goals with Indian Tribal
guidance, as well as through terms and Government and Trust Territory
conditions incorporated into EPA 5. Recordkeeping and Reporting
Requirements recipients. This rule will require such
financial assistance agreements. This
recipients to negotiate fair share goals.
rulemaking keeps the current basic Currently, all financial assistance
Therefore, under the rule such
approach, with some fine tuning, agreement recipients must report on a
recipients will have a three year phase-
including a provision which would quarterly basis, except for recipients of
in period to adjust to the regulatory
exempt a recipient of a financial continuing environmental program
change. In the interim, they will still
assistance agreement of $250,000 or less grants, and institutions of higher
have to comply with the other
for any assistance agreement, or of more education, hospitals and other non-
requirements of this rule.
than one financial assistance agreement profit organizations receiving financial
with a combined total of $250,000 or assistance awards under 40 CFR part 30, IV. Summary of Response to Public
less in EPA funds in any one year, from who report on an annual basis. This rule Comments
the fair share objective negotiation will reduce the reporting frequency to
requirement. In addition, eligible semi-annually for all recipients who Excluding changes in wording to
program grants which can be included currently report on a quarterly basis. increase clarity, there are only four
in Performance Partnership Grants to This rule also requires all financial substantive changes reflected in this
Tribal and Tribal consortia recipients assistance recipients, and recipients of final rule. Those changes, along with a
will be exempt from the fair share loans under CWSRF, DWSRF, or BCRLF breakdown of the number and type of
negotiation requirement due to the Programs to create and maintain a comments received, are below:
nature of these program grants and the bidders list. There is an exemption from Number of Comments Received: 126
Number of Percent of
Primary areas of public concern comments all comments
Certification .............................................................................................................................................................. 23 18
General (wording and clarification) .......................................................................................................................... 16 13
Good Faith Efforts ................................................................................................................................................... 14 11
Subcontracting Provisions ....................................................................................................................................... 12 9
Bidders List .............................................................................................................................................................. 11 9
Major Revisions Based on Public recipient. In an effort to curtail the non-MBE/WBEs. The bidders list is
Comment (not including wording or practice of excessively late designed to also aid recipients in their
clarification): subcontractor payments, the rule efforts to comply with the ‘‘six good
establishes maximum of 30 days by faith efforts,’’ by creating a source of
1. § 33.105—Enforcement Provisions
which a prime contractor must pay its MBEs and WBEs that can be relied upon
There were several comments subcontractor, after payment by the to increase the inclusion of MBEs and
concerning enforcement of the rule. A grant recipient. WBEs in the recipient’s procurement
number of comments stated that there practices. Section 33.501(b) of the rule
3. § 33.501—Bidders List has been revised to read as follows:
are no ‘‘teeth’’ in the program and that
more policing of the program will be Many comments were received A recipient of a Continuing Environmental
needed to insure compliance with the requesting clarification about the Program Grant or other annual grant must
requirements of the rule. While the text contents, purpose and duration of the create and maintain a bidders list. In
of the rule mentions that EPA can take bidders list. The purpose of the Bidders addition, a recipient of an EPA financial
remedial action for non-compliance, it assistance agreement to capitalize a revolving
List is to provide the recipient and loan fund also must require entities receiving
does not clearly state what those actions entities receiving identified loans who identified loans to create and maintain a
are. In an effort to show more ‘‘teeth,’’ conduct competitive bidding with a bidders list if the recipient of the loan is
this section has been revised to include more accurate database of the universe subject to, or chooses to follow, competitive
some of the remedial measures EPA can of MBE/WBE and non-MBE/WBE prime bidding requirements. The purpose of a
take if a recipient fails to comply with and subcontractors. The bidders list is bidders list is to provide the recipient and
the requirements of the rule. intended to be a list of all firms that are entities receiving identified loans who
participating, or attempting to conduct competitive bidding with as accurate
2. § 33.302—Subcontractor Provisions a database as possible about the universe of
participate, on EPA assisted contracts. MBE/WBE and non-MBE/WBE prime and

Public comment requested that EPA The list must include all firms that bid subcontractors. The list must include all
specify the number of days within on prime contracts, or bid or quote on firms that bid or quote on prime contracts or
which a prime must pay its subcontracts under EPA assisted bid or quote on subcontracts under EPA
subcontractor after payment by the projects, including both MBE/WBEs and assisted projects, including both MBE/WBEs
and non-MBE/WBEs. The bidders list must in federally assisted contracting, as well (EPA Form 6100–1h) (Concerns owned
be kept until the grant project period has as policy concerns. This rule also affects by Native Hawaiian Organizations), and
expired and the recipient is no longer a wide variety of parties, including all the EPA DBE Certification Application
receiving EPA funding under the grant. For EPA financial assistance programs, and (EPA Form 6100–1i) (Concerns Owned
entities receiving identified loans, the
bidders list must be kept until the project the DBE and non-DBE contractors that by Community Development
period for the identified loan has ended. The perform work under them. As a Corporations), as applicable, would be
following information must be obtained from ‘‘significant regulatory action,’’ EPA required to be completed by an entity
all prime and subcontractors: submitted this action to the Office of seeking to be counted as a minority
(1) Entity’s name with point of contact; Management and Budget (OMB) for business enterprise (MBE) or women’s
(2) Entity’s mailing address, telephone review under EO 12866 and any business enterprise (WBE) under EPA’s
number, and e-mail address; changes made in response to OMB DBE Program, which cannot get certified
(3) The procurement on which the entity recommendations have been as an MBE or WBE by the SBA or DOT
bid or quoted, and when; and documented in the docket for this under their respective programs or by an
(4) Entity’s status as an MBE/WBE or non-
action. Indian Tribal Government or
MBE/WBE.
Based on currently available independent private organization
In response to internal concerns information about costs that may be consistent with EPA’s 8% or 10%
regarding the application of the bidders associated with complying with this statute as applicable.
list requirement, we have created an rule (e.g., costs to obtain MBE or WBE Responses to the collection of
exemption to this provision. The certification), EPA believes that this rule information will be mandatory. EPA’s
exemption found at § 33.501(c) is as will not have an annual effect on the legal authorities for the DBE Program
follows: economy of $100 million or more. are Public Law 102–389, a 1993
A recipient of an EPA financial assistance Therefore, EPA did not prepare a appropriations act (42 U.S.C. 4370d)
agreement in the amount of $250,000 or less regulatory impact statement for this (EPA’s 8% statute), and Public Law
for any single assistance agreement, or of rule. 101–549, Title X of the Clean Air Act
more than one financial assistance agreement Amendments of 1990 (42 U.S.C. 7601
with a combined total of $250,000 or less in B. Paperwork Reduction Act
note) (EPA’s 10% statute).
any one fiscal year, is exempt from the The Office of Management and Budget Other legal authorities and Executive
paragraph (b) of this section requirement to (OMB) has approved the information Orders include Public Law 99–499, the
create and maintain a bidders list. Also, a collection requirements contained in Superfund Amendments and
recipient under the CWSRF, DWSRF, or this rule under the provisions of the Reauthorization Act of 1986; Public Law
BCRLF Program is not required to apply the
Paperwork Reduction Act, 44 U.S.C 100–590, the Small Business
paragraph (b) of this section bidders list
requirement of this subpart to an entity 3501 et seq. and has assigned OMB Administration Reauthorization and
receiving an identified loan in an amount of control number 2090–0030. Amendment Act of 1988; Executive
$250,000 or less, or to an entity receiving This ICR is for the purpose of Order 12138, ‘‘Creating a National
more than one identified loan with a ensuring that EPA’s statutory DBE Women’s Business Enterprise Policy
combined total of $250,000 or less in any one procurement goal requirements are and Prescribing Arrangements for
fiscal year. This exemption is limited to the implemented in harmony with the Developing, Coordinating and
paragraph (b) of this section bidders list United States Supreme Court’s decision Implementing a National Program for
requirements of this subpart. in Adarand Constructors, Inc. v. Pena, Women’s Business Enterprise,’’ issued
4. § 33.502—Reporting 115 S. Ct. 2097 (1995). May 18, 1979; Executive Order 11625,
The requirements to complete EPA ‘‘Prescribing Additional Arrangements
In response to internal and external Forms 6100–2–DBE Program for Developing and Coordinating a
comments, this section of the rule has Subcontractor Participation Form, National Program for Minority Business
been revised to require semiannual 6100–3–DBE Program Subcontractor Enterprise,’’ issued October 13, 1971;
reporting for all recipients who Performance Form, and 6100–4–DBE and Executive Order 12432, ‘‘Minority
currently report on a quarterly basis. All Program Subcontractor Utilization Business Enterprise Development,’’
recipients who report annually will Form, are intended to prevent any ‘‘bait issued July 14, 1983.
continue to do so. and switch’’ tactics at the subcontract EPA may make available to the public
A section-by-section analysis of the level by prime contractors which may any information concerning EPA’s DBE
rule, addressing public comments in circumvent the spirit of the DBE Program where the release of which is
detail, can be found on the public Program. not prohibited by Federal law or
docket for this rule making under The requirements to complete the regulation, including EPA’s Confidential
Docket ID No. EPA–HQ–OA–2002– EPA DBE Certification Application (EPA Business Information regulations at 40
0001, at www.regulations.gov. Form 6100–1a) (Sole Proprietorship), CFR part 2, subpart B.
V. Statutory and Executive Order the EPA DBE Certification Application The total labor burden and costs to
Reviews (EPA Form 6100–1b) (Limited Liability MBEs and WBEs for certification under
Company), the EPA DBE Certification State, Tribal and Insular Area funding
A. Executive Order 12866: Regulatory Application (EPA 6100–1c) programs is estimated to total
Planning and Review (Partnerships), the EPA DBE $8,750,300, with 168,275 burden hours
Under Executive Order (EO) 12866 Certification Application (EPA Form and 6,731 MBE and WBE entities
(58 FR 51735, October 4, 1993), this 6100–1d) (Corporations), the EPA DBE affected for the three-year period of the
action is a ‘‘significant regulatory Certification Application (EPA Form ICR. The estimated annual burden per
action.’’ This rule reflects and raises 6100–1e) (Alaska Native Corporations), response is 25 hours; the number of
legal or policy issues arising out of legal the EPA DBE Certification Application respondents is estimated at 2,244 at an
mandates. This rule has a direct impact (EPA Form 6100–1f) (Tribally Owned average annual labor burden and cost
on contracting funded by EPA financial Businesses), the EPA DBE Certification per MBE and WBE of $1300. The
assistance agreements. There is Application (EPA Form 6100–1g) average annual burden and costs are
substantial public interest concerning (Private and Voluntary Organizations), estimated by spreading the first year
programs to ensure nondiscrimination the EPA DBE Certification Application cost over the three-year period of the
ICR, yielding a total annual average under the Administrative Procedure Act This rule contains no Federal
burden of 56,092 hours and $2,916,767 (APA) or any other statute. As a grants- Mandates (under the regulatory
in costs. related rule, this rule is not subject to provisions of Title II of the UMRA) for
The total labor burden and costs to all the notice and comment requirements of State, local, or tribal governments or the
EPA grant and loan recipients that the APA, 5 U.S.C. 553(a)(1). Nor is there private sector. The UMRA excluded
would have to perform an availability any other statute which requires EPA to from the definition of ‘‘Federal
analysis to meet the requirements of the undergo notice and comment for this intergovernmental mandate’’ duties that
proposed rule and other paperwork rulemaking. arise from conditions of federal
requirements are estimated to be It is important to note that EPA’s DBE assistance. Thus, today’s rule is not
$16,509,500 with 825,475 burden hours Program is aimed at improving subject to the requirements of section
and 3,115 entities affected for the three- contracting opportunities for small 202 and 205 of the UMRA.
year period of the ICR. The estimated businesses owned and controlled by Pursuant to section 203 of the UMRA,
annual burden hours for all responses is socially and economically EPA has also determined that this rule
275,158, and the annual number of disadvantaged individuals, among contains no regulatory requirements that
respondents is estimated at 1,038. others (e.g., Historically Black Colleges might significantly or uniquely affect
The annual cost for all respondents and Universities, etc.). Accordingly, small governments. With the
would be $5,503,167. The cost per EPA believes that this rule will impact exemptions at the $250,000 level or less
respondent is estimated at $5,250 (each from compliance with the fair share
a substantial number of small entities.
respondent is estimated to perform an objective requirements, EPA believes
availability analysis once every three D. Unfunded Mandates Reform Act that there would be minimal impacts on
years) and is estimated to take 265 hours small entities, including small
Title II of the Unfunded Mandates
at $20/hour. EPA assumed there were government jurisdictions. Additionally,
no additional start-up costs or capital Reform Act of 1995 (UMRA), Public
under this rule, small entity recipients
expenditures. Law 104–4, establishes requirements for
will be able to use appropriate State
Burden means the total time, effort, or Federal agencies to assess the effects of
Agency-negotiated MBE/WBE objectives
financial resources expended by persons their regulatory actions on State, local,
if such recipients solicit bids/offers from
to generate, maintain, retain, or disclose and tribal governments and the private
substantially the same relevant
or provide information to or for a sector. Under section 202 of the UMRA,
geographic market as that State Agency.
Federal agency. This includes the time EPA generally must prepare a written Therefore, this rule does not meet the
needed to review instructions; develop, statement, including a cost-benefit threshold test for application of section
acquire, install, and utilize technology analysis, for proposed and final rules 203 of UMRA.
and systems for the purposes of with ‘‘Federal mandates’’ that may
collecting, validating, and verifying result in expenditures by State, local, E. Executive Order 13132: Federalism
information, processing and and tribal governments, in the aggregate, Executive Order 13132, entitled
maintaining information, and disclosing or to the private sector of $100 million ‘‘Federalism’’ (64 FR 43255, August 10,
and providing information; adjust the or more in any one year. Before 1999), requires EPA to develop an
existing ways to comply with any promulgating an EPA rule for which a accountable process to ensure
previously applicable instructions and written statement is needed, section 205 ‘‘meaningful and timely input by State
requirements; train personnel to be able of the UMRA generally requires EPA to and local officials in the development of
to respond to a collection of identify and consider a reasonable regulatory policies that have federalism
information; search data sources; number of regulatory alternatives and implications.’’ ‘‘Policies that have
complete and review the collection of adopts the least costly, most cost- federalism implications’’ is defined in
information; and transmit or otherwise effective or least burdensome alternative the Executive Order to include
disclose the information. that achieves the objectives of the rule. regulations that have ‘‘substantial direct
An agency may not conduct or The provisions of section 205 do not effects on the States, on the relationship
sponsor, and a person is not required to apply when they are inconsistent with between the national government and
respond to a collection of information applicable law. Moreover, section 205 the States, or on the distribution of
unless it displays a currently valid OMB allows EPA to adopt an alternative other power and responsibilities among the
control number. The OMB control than the least costly, most cost-effective various levels of government.’’
numbers for EPA’s regulations in 40 or least burdensome alternative if the This rule does not have ‘‘federalism
CFR are listed in 40 CFR part 9. In Administrator publishes with the final implications,’’ as defined in the
addition, EPA is amending the table in rule an explanation why that alternative Executive Order. It will not have
40 CFR part 9 of currently approved was not adopted. Before EPA establishes substantial direct effects on the States,
OMB control numbers for various any regulatory requirements that may on the relationship between the national
regulations to list the regulatory significantly or uniquely affect small government and the States, or on the
citations for the information governments, including tribal distribution of power and
requirements contained in this final governments, it must have developed responsibilities among the various
rule. under section 203 of the UMRA a small levels of government, as specified in
government agency plan. The plan must Executive Order 13132. Because this
C. Regulatory Flexibility Act provide for notifying potentially rule conditions the use of federal
This rule is not subject to the affected small governments, enabling assistance, it will not impose substantial
Regulatory Flexibility Act (RFA), which officials of affected small governments direct compliance costs on State and
generally requires an agency to prepare to have meaningful and timely input in local governments. Thus, the
a regulatory flexibility analysis for any the development of EPA regulatory requirements of section 6 of the
rule that will have a significant proposals with significant Federal Executive Order do not apply to this
economic impact on a substantial intergovernmental mandates, and rule.
number of small entities. The RFA informing, educating and advising small In the spirit of Executive Order 13132
applies only to rules subject to notice- governments on compliance with the and consistent with EPA policy to
and-comment rulemaking requirements regulatory requirements. promote communications between EPA
and State and local governments, EPA toward meeting MBE/WBE objectives. In with § 33.501(b). The purpose of this list
specifically solicited comment on the addition, the rule will have the is to provide recipients as accurate a
proposed rule from State and local following impacts on tribes/tribally database as possible about the universe
officials. Stakeholders, including owned businesses: of MBE/WBE and non-MBE/WBE prime
representatives from State government First, a business owned by a federally and subcontractors who seek to work on
agencies, State government recognized tribal government would procurements under EPA financial
organizations and local governments, have to file an annual affidavit with assistance agreements. The following
were given an opportunity to comment EPA certifying no change in its MBE information must be obtained from all
on the proposed rule which was status, pursuant to § 33.210 of this rule. such prime and subcontractors: (1)
published in the Federal Register on Second, a business owned by a Entity’s name with point of contact; (2)
July 24, 2003, during the 180-day Federally recognized tribal government entity’s mailing address, telephone
comment period. Public hearings were will have to be recertified every three number, and e-mail address; (3) the
also held in several states across the years as meeting SBA’s applicable 8(a) procurement on which the entity bid or
country to discuss the proposed rule criteria to be eligible to be counted in quoted, and when; and (4) entity’s status
and to encourage comment. the future towards meeting the MBE/ as an MBE/WBE or non-MBE/WBE.
WBE fair share objectives, pursuant to EPA consulted with tribal officials
F. Executive Order 13175 Consultation § 33.208. and/or representatives of tribal
and Coordination With Indian Tribal Third, a business owned by a governments early in the process of
Governments federally recognized tribal government, developing this regulation to permit
Executive Order 13175, entitled if it is not already certified in them to have meaningful and timely
‘‘Consultation and Coordination with accordance with SBA’s applicable 8(a) input into its development. This rule
Indian Tribal Governments’’ (65 FR criteria, may have to incur costs to be has been under development for the
67249, November 9, 2000), requires EPA certified if there is no tribal certifier past several years. The meaningful and
to develop an accountable process to available and the other certifying entity timely input of Tribal officials and/or
ensure ‘‘meaningful and timely input by charges for its services. representatives into the development of
tribal officials in the development of Fourth, a tribe as a recipient of EPA this rule is as follows:
regulatory policies that have tribal financial assistance will have to be On February 2–4, 1999, EPA invited
implications.’’ EPA has concluded that notified in writing before any tribal recipients of EPA grants and
this final rule will have tribal termination of a DBE subcontractor for cooperative agreements to an EPA/State/
implications. However, it will neither convenience is made by its prime Tribal Annual Conference in
impose substantial direct compliance contractor, pursuant to § 33.303(a). Albuquerque, New Mexico. During this
costs nor preempt tribal law. Those Fifth, consistent with other Federal conference, EPA representatives
implications are as follows: and tribal laws, a tribe will have to discussed a number of issues relating to
Tribes receiving an EPA financial require its prime contractor, after the the rule under development with the
assistance agreement of more than tribe has unsuccessfully sought to apply general audience. In addition, EPA
$250,000 for any single assistance Indian preference consistent with the representatives met separately with
agreement, or of more than one financial Indian Self-Determination and tribal officials and/or representatives to
assistance agreement with a combined Education Assistance Act, to employ the discuss issues of concern to tribes. EPA
total of more than $250,000 in any one good faith efforts described in § 33.301 posted a staff draft of the proposed rule,
fiscal year (excluding Performance if a DBE subcontractor fails to complete dated June 19, 2000, on EPA’s Internet
Partnership Grant eligible grants to work under a subcontract for any reason Web site to solicit public comment. On
tribes and intertribal consortia under 40 and the prime contractor solicits a June 27–30, 2000, the Agency held its
CFR part 35, subpart B) will have to replacement subcontractor, pursuant to EPA/State/Tribal Annual Conference in
negotiate fair share objectives with EPA § 33.303(b). Albuquerque, New Mexico. Again, EPA
unless they choose to adopt MBE and Sixth, consistent with other Federal invited tribal recipients of EPA financial
WBE objectives of another EPA and tribal Laws, a tribe will have to assistance agreements to attend. During
recipient consistent with the final rule. require its prime contractor, after it has the June, 2000 conference, agency
Those tribes required to negotiate fair unsuccessfully sought to apply Indian representatives discussed in detail the
share objectives with EPA will have a preference consistent with the Indian June 19, 2000 staff draft of the rule,
phase-in period of up to three years in Self-Determination and Education which had been posted on EPA’s Web
which to do so; their fair share Assistance Act, to employ the good faith site. EPA solicited comments on the
objectives will remain in effect for three efforts described in § 33.301 even if it staff draft of the rule from conference
fiscal years after they have been has achieved its fair share objectives participants. Tribal officials and/or
approved by EPA, unless there are under subpart D of the rule, pursuant to representatives attended that conference
significant changes to the data § 33.303(c). as well. As of June 30, 2001, EPA
supporting the fair share objectives. Seventh, a tribe will have to require received a total of 17 written comments
Some tribally owned businesses its prime contractors to provide EPA on the staff draft from Indian tribes.
(businesses that a Federally recognized Form 6100–2—DBE Program During the development of this rule
tribal government owns or in which it Subcontractor Participation Form, EPA EPA representatives made a number of
has a majority share) will not be eligible Form 6100–3—DBE Program oral presentations to the Tribal
to be counted towards meeting the Subcontractor Performance Form and Operations Committee (TOC) on the
MBE/WBE fair share objectives if they EPA Form 6100–4—DBE Program rule’s progress and solicited input. The
do not meet the applicable SBA 8(a) Subcontractor Utilization Form to all of TOC is comprised of 19 national tribal
criteria, e.g., see 13 CFR 124.109(b). Of its DBE subcontractors, pursuant to representatives from the nine EPA
course, tribes may continue to do sections 33.303(e), (f) and (g), Regions that have federally recognized
business with tribally owned or other respectively. tribes and EPA Senior Management; its
companies which do not meet the Eighth, a tribal recipient that conducts role is to provide input into EPA
applicable SBA 8(a) criteria, they simply procurements will have to create and decision making affecting Indian
would not count such procurements maintain a bidders list in accordance Country. On November 29, 2000, EPA
representatives met with the TOC at the MBE/WBE procurement objective $250,000 exemption or the exemption
EPA Tribal Caucus Regional Joint requirements for research relating to the for PPG eligible program grants under
meeting in Miami, Florida, to discuss requirements of the Clean Air Act, nor 40 CFR part 35, subpart B. Finally, EPA
the staff draft rule and to obtain further EPA’s statutory 8% MBE/WBE believes that a number of tribes which
tribal input into the rulemaking process. procurement objective requirements for otherwise would have to negotiate fair
Starting in November, 2000, EPA all other programs, exempt tribes. share objectives may elect instead to
invited tribal recipients of EPA grants Therefore, tribes are not exempt from apply the objectives of another recipient
and cooperative agreements to this rule, because it promotes the in accordance with the requirements of
participate in outreach sessions held in utilization of all disadvantaged entities the rule. The rule will also provide
cities around the country in order to in procurement under EPA financial tribes with a three-year phase-in period
discuss the staff draft rule. EPA further assistance agreements, including tribally to comply with the fair share
solicited tribal input into the owned businesses and businesses negotiation requirement.
rulemaking at meetings with tribal owned by a member(s) of a tribe.
officials/representatives at the 3. Reporting and Recordkeeping
Department of the Interior 2001 2. Trigger for Fair Share Negotiations Requirements
Conference on the Environment hosted The issue of increasing the dollar Some tribes expressed concerns that
by the Bureau of Indian Affairs on amount of the trigger requiring keeping records of and reporting
March 13–15, 2001, in Albuquerque, compliance with the fair share objective purchases for EPA funded grants would
New Mexico and at the Reservation requirements and the corresponding impose a heavy burden on tribal
Economic Summit and American Indian availability analysis was of special governments. Instead, they suggested
Business Trade Fair (RES 2001) in concern to tribes awarded General basing reporting on the amount of
Anaheim, California, on March 20, Assistance Program grants. Comments money the tribe received rather than on
2001. EPA further solicited tribal input also expressed the view that availability the amount of money it spent on outside
in another meeting with the TOC on analysis preparation requirements supplies and services.
April 24, 2001, in Miami, Florida. should apply only to tribes spending EPA considered these concerns and
As part of its ongoing tribal 90% or more of their grants on outside concluded that 40 CFR part 31 already
coordination on this rule, EPA held procurement. Other tribes expressed the requires tribes to comply with part 31’s
meetings with tribal officials to discuss view that preparing availability analyses recordkeeping and reporting
the staff draft rule in Boston, is too costly for them, especially for requirements, which included MBE/
Massachusetts on April 11, 2001 and in smaller tribes. WBE recordkeeping and reporting. The
Seattle, Washington on May 23, 2001. In response to concerns raised by Agency believes that basing
EPA held further coordination meetings tribes, the trigger requiring compliance requirements on amounts received
with tribal officials to discuss a draft of with the fair share objective rather than on amounts spent would be
this Rule in Ocean Shores, Washington requirements has been increased to an inaccurate measurement of MBE/
during the week of January 28, 2002. On $250,000 from the $100,000 threshold WBE procurement utilization. EPA
July 24, 2003, the proposed rule was contained in an earlier draft of the rule. currently requires financial assistance
published in the Federal Register, with Also because of the nature of eligible recipients to report MBE/WBE
a 180-day comment period. After the program grants which can be included accomplishments based on dollars spent
rule was published in the Federal in Performance Partnership Grants on MBE/WBE procurements. Therefore,
Register, EPA held 10 tribal meetings (PPGs) to tribes under 40 CFR part 35, EPA is not adopting the suggested
across the country to solicit comments subpart B, and the unique nature of change. However, because of comments
and suggestions on the final rule. eligible recipients, the Agency is received requesting a reduction in the
EPA has considered tribal concerns exempting PPG eligible program grants burden created by quarterly reporting,
and written comments in the final rule. to tribes under 40 CFR part 35, subpart EPA has reduced the reporting
A summary of the nature of tribal B from the fair share negotiation requirement to semi-annually for
concerns and EPA’s response follows: requirements. recipients who currently report on a
Accordingly, only tribes receiving an quarterly basis. Recipients who
1. Applicability of the Rule to Tribes EPA financial assistance agreement of currently report annually will continue
Awards of Grants and Cooperative more than $250,000 for any single to do so.
Agreements to tribes are currently assistance agreement, or of more than
governed by 40 CFR part 31,‘‘Uniform one financial assistance agreement with 4. Compliance With the Good Faith
Administrative Requirements for Grants a combined total of more than $250,000 Efforts Requirements
and Cooperative Agreements to State in any one fiscal year (excluding PPG One comment objected to having to
and Local Governments.’’ These are eligible program grants under 40 CFR advertise in newspapers; a comment
government wide requirements that part 35, subpart B), will have to comply was also made that EPA should
have been in effect since 1988. Among with the fair share objective investigate alternative mechanisms that
other entities subject to the regulations requirements. encourage a tribe to seek out MBEs/
are governments. The definition of The Agency believes that this change WBEs during the procurement process
‘‘Government’’ in 40 CFR 31.3 includes effectively addresses the concerns by without incurring an unreasonable
* * * a federally recognized Indian setting a uniform standard applicable to financial burden.
tribal government.’’ Many requirements all recipients, including tribes, rather Section 7(b) of the Indian Self-
contained in this rule are not new but than, for example, setting a standard Determination and Education
rather are the same requirements based on amounts spent by tribes on Assistance Act requires tribal
contained in 40 CFR part 31, with outside procurement, which could pose governments to solicit tribally-owned
which many tribes already have been implementation difficulties. EPA businesses and/or businesses owned by
complying. For example, the reporting believes that most tribes will not have a member(s) of a tribe, before
and recordkeeping requirements are to comply with the fair share objective undertaking the six good faith efforts.
already applicable to Indian tribes. In requirements under the final rule Tribes are currently subject to 40 CFR
addition, neither EPA’s statutory 10% because they will fall under the part 31, which requires them to make
good faith efforts to ensure that DBEs supply, distribution, or use of energy. report containing this rule and other
are used whenever possible. EPA is EPA has concluded that this rule is not required information to the U.S. Senate,
changing this requirement. EPA does likely to have any adverse energy the U.S. House of Representatives, and
not believe that the good faith effort effects. the Comptroller General of the United
requirements are unduly burdensome. I. National Technology Transfer and
States prior to publication of the rule in
Advancement Act the Federal Register. A Major rule
5. Phase-In Period
cannot take effect until 60 days after it
One comment expressed a concern As noted in the proposed rule, section is published in the Federal Register.
about the timing of the phase-in period 12(d) of the National Technology This action is not a ‘‘major rule’’ as
and the maximum amount of time Transfer and Advancement Act of 1995 defined by 5 U.S.C. 804(2). This rule
needed for the requirement to be (‘‘NTTAA’’), Public Law 104–113, 12(d) will be effective May 27, 2008.
implemented. (15 U.S.C. 272 note) directs EPA to use
EPA believes that the three-year voluntary consensus standards in its List of Subjects
phase-in period, which begins after the regulatory activities unless to do so 40 CFR Part 30
final rule’s effective date, allows tribes would be inconsistent with applicable
sufficient time to prepare for and law or otherwise impractical. Voluntary Environmental protection,
comply with the requirements of the consensus standards are technical Administrative practice and procedure,
rule. standards (e.g., materials specifications, Grant programs—environmental
As required by section 7(a), EPA’s test methods, sampling procedures, and protection, Reporting and recordkeeping
Tribal Consultation Official has certified business practices) that are developed or requirements.
that the requirements of the Executive adopted by voluntary consensus 40 CFR Part 31
Order have been met in a meaningful standards bodies. The NTTAA directs
Accounting, Administrative practice
and timely manner. A copy of the EPA to provide Congress, through OMB,
and procedure, Grant programs, Indians,
certification is included in the docket explanations when the Agency decides
Intergovernmental relations, Reporting
for this rule. not to use available and applicable
and recordkeeping requirements.
voluntary consensus standards. This
G. Executive Order 13045: (Protection of
rule does not involve technical 40 CFR Part 33
Children From Environmental Health
standards. Therefore, EPA is not Grant programs—environmental
Risks and Safety Risks)
considering the use of any voluntary protection.
Executive Order 13045: ‘‘Protection of consensus standards.
Children from Environmental Health 40 CFR Part 35
Risks and Safety Risks’’ (62 FR 19885, J. Executive Order 12898: Federal
Actions To Address Environmental Grant programs—environmental
April 23, 1997) applies to any rule that: protection, Grant programs—Indians,
(1) Is determined to be ‘‘economically Justice in Minority Populations and
Low-Income Populations Hazardous waste, Indians,
significant’’ as defined under Executive Intergovernmental relations, Reporting
Order 12866, and (2) concerns any Executive Order (EO) 12898 (59 FR and recordkeeping requirements.
environmental health or safety risk that 7629 (Feb. 16, 1994)) establishes federal
EPA has reason to believe may have a executive policy on environmental 40 CFR Part 40
disproportionate effect on children. If justice. Its main provision directs Research and Demonstration Grants—
the regulatory action meets both criteria, federal agencies, to the greatest extent Projects involving construction.
EPA must evaluate the environmental practicable and permitted by law, to
Dated: March 18, 2008.
health or safety effects of the planned make environmental justice part of their
Stephen L. Johnson,
rule on children and explain why the mission by identifying and addressing,
planned regulation is preferable to other as appropriate, disproportionately high Administrator.
potentially effective and reasonably and adverse human health or ■ For the reasons set out in the
feasible alternatives considered by the environmental effects of their programs, preamble, title 40, chapter I of the Code
Agency. policies, and activities on minority of Federal Regulations is amended as
EPA interprets Executive Order 13045 populations and low-income follows:
as applying only to those regulatory populations in the United States.
actions that are based on health or safety EPA has determined that this final PART 30—[AMENDED]
risks, such that the analysis required rule will not have disproportionately ■ 1. The authority citation for part 30
under section 5–501 of the Order has high and adverse human health or continues to read as follows:
the potential to influence the regulation. environmental effects on minority or
This rule is not subject to Executive low-income populations because it does 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.
Order 13045 because it does not not affect the level of protection 241, 242(b), 243, 246, 300f, 300j–1, 300j–2,
establish an environmental standard provided to human health or the 300j–3; 1857 et seq.; 6901 et seq., 7401 et
intended to mitigate health or safety environment. seq.; OMB circular A–110 (64 FR 54926,
risks. October 8, 1999).
K. Congressional Review Act
H. Executive Order 13211: Actions That The Congressional Review Act, 5 § 30.44 [Amended]
Significantly Affect Energy Supply, U.S.C. 801 et seq., as added by the Small
Distribution, or Use ■ 2. Section 30.44 is amended by
Business Regulatory Enforcement removing and reserving paragraph (b).
This rule is not a ‘‘significant energy Fairness Act of 1996, generally provides
action’’ as defined in Executive Order that before a rule may take effect, the PART 31—[AMENDED]
13211, ‘‘Actions Concerning Regulations agency promulgating the rule must

That Significantly Affect Energy Supply, submit a rule report, which includes a ■ 3. The authority citation for part 31
Distribution, or Use’’ (66 FR 28355 (May copy of the rule, to each House of the continues to read as follows:
22, 2001)) because it is not likely to Congress and to the Comptroller General Authority: 7 U.S.C. 136 et seq.; 15 U.S.C.
have a significant adverse effect on the of the United States. EPA will submit a 2601 et seq.; 20 U.S.C. 4011 et seq.; 33 U.S.C.
1251 et seq. and 1401 et seq.; 42 U.S.C. 300f Tribal Government) recipient or prime (c) To help remove barriers to the
et seq., 6901 et seq., 7401 et seq., and 9601 contractor follow the six good faith participation of DBEs in the award of
et seq. efforts? contracts under EPA financial assistance
§ 31.36 [Amended] Subpart D—Fair Share Objectives agreements; and
33.401 What does this subpart require? (d) To provide appropriate flexibility
■ 4. Section 31.36 is amended by to recipients of EPA financial assistance
33.402 Are there special rules for loans
removing and reserving paragraph (e). under EPA financial assistance in establishing and providing
agreements? contracting opportunities for DBEs.
PART 33—[ADDED] 33.403 What is a fair share objective?
33.404 When must a recipient negotiate fair § 33.102 When do the requirements of this
■ 5. Part 33 is added as follows: share objectives with EPA? part apply?
33.405 How does a recipient determine its The requirements of this part apply to
PART 33—PARTICIPATION BY fair share objectives? procurement under EPA financial
DISADVANTAGED BUSINESS 33.406 May a recipient designate a lead assistance agreements performed
ENTERPRISES IN UNITED STATES agency for fair share objective entirely within the United States,
ENVIRONMENTAL PROTECTION negotiation purposes? whether by a recipient or its prime
AGENCY PROGRAMS 33.407 How long do MBE and WBE fair
share objectives remain in effect?
contractor, for construction, equipment,
Subpart A—General Provisions 33.408 May a recipient use race and/or services and supplies.
Sec. gender conscious measures as part of this § 33.103 What do the terms in this part
33.101 What are the objectives of this part? program? mean?
33.102 When do the requirements of this 33.409 May a recipient use quotas as part of
this program? Terms not defined below shall have
part apply? the meaning given to them in 40 CFR
33.103 What do the terms in this part 33.410 Can a recipient be penalized for
mean? failing to meet its fair share objectives? part 30, part 31 and part 35 as
33.104 May a recipient apply for a waiver 33.411 Who may be exempted from this applicable. As used in this part:
from the requirements of this part? subpart? Availability analysis means
33.105 What are the compliance and 33.412 Must an Insular Area or Indian documentation of the availability of
enforcement provisions of this part? Tribal Government recipient negotiate MBEs and WBEs in the relevant
33.106 What assurances must EPA financial fair share objectives? geographic market in relation to the
assistance recipients obtain from their Subpart E—Recordkeeping and Reporting total number of firms available in that
contractors? area.
33.501 What are the recordkeeping
33.107 What are the rules governing Award official means the EPA
requirements of this part?
availability of records, cooperation, and Regional or Headquarters official
33.502 What are the reporting requirements
intimidation and retaliation? delegated the authority to execute
of this part?
Subpart B—Certification 33.503 How does a recipient calculate MBE financial assistance agreements on
33.201 What does this subpart require? and WBE participation for reporting behalf of EPA.
33.202 How does an entity qualify as an purposes? Broker means a firm that does not
MBE or WBE under EPA’s 8% statute? Appendix A to Part 33—Terms and itself perform, manage or supervise the
33.203 How does an entity qualify as an Conditions work of its contract or subcontract in a
MBE or WBE under EPA’s 10% statute? manner consistent with the normal
33.204 Where does an entity become Authority: 15 U.S.C. 637 note; 42 U.S.C. business practices for contractors or
certified under EPA’s 8% and 10% 4370d, 7601 note, 9605(f); E.O. 11625, 36 FR subcontractors in its line of business.
statutes? 19967, 3 CFR, 1971 Comp., p. 213; E.O. Business, business concern or
33.205 How does an entity become certified 12138, 49 FR 29637, 3 CFR, 1979 Comp., p. business enterprise means an entity
by EPA? 393; E.O. 12432, 48 FR 32551, 3 CFR, 1983
organized for profit with a place of
33.206 Is there a list of certified MBEs and Comp., p. 198.
WBEs?
business located in the United States,
33.207 Can an entity reapply to EPA for Subpart A—General Provisions and which operates primarily within the
MBE or WBE certification? United States or which makes a
33.208 How long does an MBE or WBE § 33.101 What are the objectives of this significant contribution to the United
certification from EPA last? part? States economy through payment of
33.209 Can EPA re-evaluate the MBE or The objectives of this part are: taxes or use of American products,
WBE status of an entity after EPA (a) To ensure nondiscrimination in materials or labor.
certifies it to be an MBE or WBE? the award of contracts under EPA Construction means erection,
33.210 Does an entity certified as an MBE financial assistance agreements. To that alteration, or repair (including dredging,
or WBE by EPA need to keep EPA end, implementation of this rule with excavating, and painting) of buildings,
informed of any changes which may respect to grantees, sub-grantees, loan structures, or other improvements to
affect the entity’s certification?
33.211 What is the process for appealing or
recipients, prime contractors, or real property, and activities in response
challenging an EPA MBE or WBE subcontractors in particular States or to a release or a threat of a release of a
certification determination? locales—notably those where there is no hazardous substance into the
33.212 What conduct is prohibited by this apparent history of relevant environment, or activities to prevent the
subpart? discrimination—must comply with introduction of a hazardous substance
Subpart C—Good Faith Efforts
equal protection standards at that level, into a water supply.
apart from the EPA DBE Rule’s Disabled American means, with
33.301 What does this subpart require? constitutional compliance as a national respect to an individual, permanent or
33.302 Are there any additional contract temporary physical or mental
administration requirements?
matter;
33.303 Are there special rules for loans

(b) To harmonize EPA’s DBE Program impairment that substantially limits one
under EPA financial assistance objectives with the U.S. Supreme or more of the major life activities of
agreements? Court’s decision in Adarand such an individual; a record of such an
33.304 Must a Native American (either as Constructors, Inc. v. Pena, 515 U.S. 200 impairment; or being regarded as having
an individual, organization, Tribe or (1995); such an impairment.
Disadvantaged business enterprise appears on the List of Qualified agreement or is a sub-recipient of such
(DBE) means an entity owned or HUBZone Small Business Concerns agreement, including loan recipients
controlled by a socially and maintained by the Small Business under the Clean Water State Revolving
economically disadvantaged individual Administration. Fund Program, Drinking Water State
as described by Public Law 102–389 (42 Identified loan means a loan project Revolving Fund Program, and the
U.S.C. 4370d) or an entity owned and or set-aside activity receiving assistance Brownfields Cleanup Revolving Loan
controlled by a socially and from a recipient of an EPA financial Fund Program.
economically disadvantaged individual assistance agreement to capitalize a Services means a contractor’s labor,
as described by Title X of the Clean Air revolving loan fund, which: time or efforts provided in a manner
Act Amendments of 1990 (42 U.S.C. (1) In the case of the CWSRF Program, consistent with normal business
7601 note); a Small Business Enterprise is a project funded from amounts equal practices which do not involve the
(SBE); a Small Business in a Rural Area to the capitalization grant; delivery of a specific end item, other
(SBRA); or a Labor Surplus Area Firm (2) In the case of the DWSRF Program, than documents (e.g., reports, design
(LSAF), a Historically Underutilized is a loan project or set-aside activity drawings, specifications).
Business (HUB) Zone Small Business funded from amounts up to the amount Small business, small business
Concern, or a concern under a successor of the capitalization grant; or concern or small business enterprise
program. (3) In the case of the BCRLF Program, (SBE) means a concern, including its
Disparity study means a comparison is a project that has been funded with affiliates, that is independently owned
within the preceding ten years of the EPA financial assistance. and operated, not dominant in the field
available MBEs and WBEs in a relevant Insular area means the of operation in which it is bidding, and
geographic market with their actual Commonwealth of Puerto Rico or any qualified as a small business under the
usage by entities procuring in the territory or possession of the United criteria and size standards in 13 CFR
categories of construction, equipment, States. part 121.
services and supplies. Joint venture means an association of Small business in a rural area (SBRA)
Equipment means items procured a DBE firm and one or more other firms means a small business operating in an
under a financial assistance agreement to carry out a single, for-profit business area identified as a rural county with a
as defined by applicable regulations (for enterprise, for which the parties code 6–9 in the Rural-Urban continuum
example 40 CFR 30.2 and 40 CFR 31.3) combine their property, capital, efforts, Classification Code developed by the
for the particular type of financial skills and knowledge, and in which the United States Department of Agriculture
assistance received. DBE is responsible for a distinct, clearly in 1980.
Fair share objective means an defined portion of the work of the Supplies means items procured under
objective expressing the percentage of contract and whose share in the capital a financial assistance agreement as
MBE or WBE utilization expected absent contribution, control, management, defined by applicable regulations for the
the effects of discrimination. risks, and profits of the joint venture are particular type of financial assistance
Financial assistance agreement means commensurate with its ownership received.
grants or cooperative agreements interest. United States means any of the
awarded by EPA. The term includes Labor surplus area firm (LSAF) means several States, the District of Columbia,
grants or cooperative agreements used to a concern that together with its first-tier the Commonwealth of Puerto Rico and
capitalize revolving loan funds, subcontractors will perform any other territories and possessions of
including, but not limited to, the Clean substantially in labor surplus areas (as the United States.
Water State Revolving Loan Fund identified by the Department of Labor in Women’s business enterprise (WBE)
(CWSRF) Program under Title VI of the accordance with 20 CFR part 654). means a business concern which is at
Clean Water Act, as amended, 33 U.S.C. Performance is substantially in labor least 51% owned or controlled by
1381 et seq., the Drinking Water State surplus areas if the costs incurred under women for purposes of EPA’s 8%
Revolving Fund (DWSRF) Program the contract on account of statute or a business concern which is
under section 1452 of the Safe Drinking manufacturing, production or at least 51% owned and controlled by
Water Act, 42 U.S.C. 300j–12, and the performance of appropriate services in women for purposes for EPA’s 10%
Brownfields Cleanup Revolving Loan labor surplus areas exceed 50 percent of statute. Determination of ownership by
Fund (BCRLF) Program under section the contract price. a married woman in a community
104 of the Comprehensive Minority business enterprise (MBE) property jurisdiction will not be affected
Environmental Response, Compensation means a Disadvantaged Business by her husband’s 50 percent interest in
and Liability Act, 42 U.S.C. 9604. Enterprise (DBE) other than a Small her share. Similarly, a business concern
Good faith efforts means the race and/ Business Enterprise (SBE), a Labor which is more than 50 percent owned
or gender neutral measures described in Surplus Area Firm (LSAF), a Small by a married man will not become a
subpart C of this part. Business in Rural Areas (SBRA), or a qualified WBE by virtue of his wife’s 50
Historically black college or university Women’s Business Enterprise (WBE). percent interest in his share.
(HBCU) means an institution Minority institution means an
determined by the Secretary of accredited college or university whose § 33.104 May recipients apply for a waiver
Education to meet the requirements of enrollment of a single designated group from the requirements of this part?
34 CFR part 608. or a combination of designated groups (a) A recipient may apply for a waiver
HUBZone means a historically (as defined by the Small Business from any of the requirements of this part
underutilized business zone, which is Administration regulations at 13 CFR that are not specifically based on a
an area located within one or more part 124) exceeds 50% of the total statute or Executive Order, by
qualified census tracts, qualified enrollment. submitting a written request to the
metropolitan counties, or lands within Native American means any Director of the Office of Small and
the external boundaries of an Indian individual who is an American Indian, Disadvantaged Business Utilization.
reservation. Eskimo, Aleut, or Native Hawaiian. (b) The request must document
HUBZone small business concern Recipient means an entity that special or exceptional circumstances
means a small business concern that receives an EPA financial assistance that make compliance with the
requirement impractical, including a (c) Wholly or partly suspending or properly certified as required by this
specific proposal addressing how the terminating the current award; or subpart.
recipient intends to achieve the (d) Withholding further awards for the (b) EPA’s DBE Program is primarily
objectives of this part as described in project or program. based on two statutes. Public Law 102–
§ 33.101. The request must show that: 389, 42 U.S.C. 4370d, provides for an
§ 33.106 What assurances must EPA 8% objective for awarding contracts
(1) There is a reasonable basis to
financial assistance recipients obtain from
conclude that the recipient could their contractors?
under EPA financial assistance
achieve a level of MBE and WBE agreements to business concerns or
The recipient must ensure that each other organizations owned or controlled
participation consistent with the
procurement contract it awards contains by socially and economically
objectives of this part using different or
the term and condition specified in disadvantaged individuals, including
innovative means other than those that
Appendix A to this part concerning HBCUs and women (‘‘EPA’s 8%
are provided in subparts C or D of this
compliance with the requirements of statute’’). Title X of the Clean Air Act
part;
this part. The recipient must also ensure Amendments of 1990, 42 U.S.C. 7601
(2) Conditions in the recipient’s
that this term and condition is included note, provides for a 10% objective for
jurisdiction are appropriate for
in each procurement contract awarded awarding contracts under EPA financial
implementing the request; and
(3) The request is consistent with by an entity receiving an identified loan assistance agreements for research
applicable law. under a financial assistance agreement relating to such amendments to business
(c) The OSDBU Director has the to capitalize a revolving loan fund. concerns or other organizations owned
authority to approve a recipient’s § 33.107 What are the rules governing and controlled by socially and
request. If the OSDBU Director grants a availability of records, cooperation, and economically disadvantaged individuals
recipient’s request, the recipient may intimidation and retaliation? (‘‘EPA’s 10% statute’’).
administer its program as provided in (a) Availability of records. (1) In
the request, subject to the following § 33.202 How does an entity qualify as an
responding to requests for information MBE or WBE under EPA’s 8% statute?
conditions: concerning any aspect of EPA’s DBE
(1) The recipient’s level of MBE and To qualify as an MBE or WBE under
Program, EPA complies with the
WBE participation continues to be EPA’s 8% statute, an entity must
provisions of the Federal Freedom of
consistent with the objectives of this establish that it is owned or controlled
Information and Privacy Acts (5 U.S.C.
part; by socially and economically
552 and 552a). EPA may make available
(2) There is a reasonable limitation on disadvantaged individuals who are of
to the public any information
the duration of the recipient’s modified good character and citizens of the
concerning EPA’s DBE Program release
program; and United States. An entity need not
of which is not prohibited by Federal
(3) Any other conditions the OSDBU demonstrate potential for success.
law or regulation, including EPA’s (a) Ownership or control.
Director makes on the grant of the Confidential Business Information
waiver. ‘‘Ownership’’ and ‘‘control’’ shall have
regulations at 40 CFR part 2, subpart B. the same meanings as set forth in 13
(d) The OSDBU Director may end a (2) EPA recipients shall safeguard
program waiver at any time upon notice CFR 124.105 and 13 CFR 124.106,
from disclosure to unauthorized persons
to the recipient and require a recipient respectively. (See also 13 CFR 124.109
information that may reasonably be
to comply with the provisions of this for special rules applicable to Indian
considered as confidential business
part. The OSDBU Director may also tribes and Alaska Native Corporations;
information, consistent with Federal,
extend the waiver if he or she 13 CFR 124.110 for special rules
state, and local law.
determines that all requirements of (b) Cooperation. All participants in applicable to Native Hawaiian
paragraphs (b) and (c) of this section EPA’s DBE Program are required to Organizations).
continue to be met. Any such extension (b) Socially disadvantaged individual.
cooperate fully and promptly with EPA,
shall be for no longer than the period A socially disadvantaged individual is a
EPA Private Certifiers and EPA
originally set for the duration of the person who has been subjected to racial
recipients in reviews, investigations,
program waiver. or ethnic prejudice or cultural bias
and other requests for information.
because of his or her identity as a
Failure to do so shall be a ground for
§ 33.105 What are the compliance and member of a group without regard to his
enforcement provisions of this part? appropriate action against the party
or her individual qualities and as
involved in accordance with § 33.105.
If a recipient fails to comply with any (c) Intimidation and retaliation. A further defined by the implementing
of the requirements of this part, EPA recipient, contractor, or any other regulations of section 8(a)(5) of the
may take remedial action under 40 CFR participant in EPA’s DBE Program must Small Business Act (15 U.S.C. 637(a)(5);
parts 30, 31 or 35, as appropriate, or any not intimidate, threaten, coerce, or 13 CFR 124.103; see also 13 CFR
other action authorized by law, discriminate against any individual or 124.109 for special rules applicable to
including, but not limited to, firm for the purpose of interfering with Indian tribes and Alaska Native
enforcement under 18 U.S.C. 1001 and/ any right or privilege secured by this Corporations; 13 CFR 124.110 for
or the Program Fraud Civil Remedies part. Violation of this prohibition shall special rules applicable to Native
Act of 1986 (31 U.S.C. 3801 et seq.). be a ground for appropriate action Hawaiian Organizations).
Examples of the remedial actions under (c) Economically disadvantaged
against the party involved in accordance
40 CFR parts 30, 31, and 35 include, but individual. An economically
with § 33.105.
are not limited to: disadvantaged individual is a socially
(a) Temporarily withholding cash Subpart B—Certification disadvantaged individual whose ability
payments pending correction of the to compete in the free enterprise system
deficiency by the recipient or more § 33.201 What does this subpart require? is impaired due to diminished capital
severe enforcement action by EPA; (a) In order to qualify and participate and credit opportunities, as compared to
(b) Disallowing all or part of the cost as an MBE or WBE prime or others in the same business area who
of the activity or action not in subcontractor for EPA recipients under are not socially disadvantaged and as
compliance; EPA’s DBE Program, an entity must be further defined by section 8(a)(6) of the
Small Business Act (15 U.S.C. 637(a)(6)) to compete in the free enterprise system (2) As a party to a joint venture, a
and its implementing regulations (13 is impaired due to diminished capital person who is not an economically
CFR 124.104). (See also 13 CFR 124.109 and credit opportunities, as compared to disadvantaged individual, or an entity
for special rules applicable to Indian others in the same business area who that is not owned and controlled by a
tribes and Alaska Native Corporations; are not socially disadvantaged and as socially and economically
13 CFR 124.110 for special rules further defined by section 8(a)(6) of the disadvantaged individual, may not be a
applicable to Native Hawaiian Small Business Act (15 U.S.C. 637(a)(6)) party to more than two awarded
Organizations). Under EPA’s DBE and its implementing regulations (13 contracts in a fiscal year solely by joint
Program, an individual claiming CFR 124.104). (See also 13 CFR 124.109 venture with a socially and
disadvantaged status must have an for special rules applicable to Indian economically disadvantaged individual
initial and continued personal net worth tribes and Alaska Native Corporations; or entity.
of less than $750,000. 13 CFR 124.110 for special rules
(d) HBCU. An HBCU automatically applicable to Native Hawaiian § 33.204 Where does an entity become
certified under EPA’s 8% and 10% statutes?
qualifies as an entity owned or Organizations). Under EPA’s DBE
controlled by socially and economically Program, an individual claiming (a) In order to participate as an MBE
disadvantaged individuals. disadvantaged status must have an or WBE prime or subcontractor for EPA
(e) Women. Women are deemed to be initial and continued personal net worth recipients under EPA’s DBE Program, an
socially and economically of less than $750,000. entity must first attempt to be certified
disadvantaged individuals. Ownership (d) Presumptions. In accordance with by the following:
or control must be demonstrated Title X of the Clean Air Act (1) The United States Small Business
pursuant to paragraph (a) of this section, Amendments of 1990, 42 U.S.C. 7601 Administration (SBA), under its 8(a)
which may be accomplished by note, Black Americans, Hispanic Business Development Program (13 CFR
certification under § 33.204. Americans, Native Americans, Asian part 124, subpart A) or its Small
Americans, Women and Disabled Disadvantaged Business (SDB) Program,
§ 33.203 How does an entity qualify as an (13 CFR part 124, subpart B);
MBE or WBE under EPA’s 10% statute? Americans are presumed to be socially
and economically disadvantaged (2) The United States Department of
To qualify as an MBE or WBE under Transportation (DOT), under its
EPA’s 10% statute, an entity must individuals. In addition, the following
institutions are presumed to be entities regulations for Participation by
establish that it is owned and controlled Disadvantaged Business Enterprises in
by socially and economically owned and controlled by socially and
economically disadvantaged DOT Programs (49 CFR parts 23 and 26);
disadvantaged individuals who are of or
good character and citizens of the individuals: HBCUs, Minority
(3) an Indian Tribal Government,
United States. Institutions (including Tribal Colleges
State Government, local Government or
(a) Ownership and control. An entity and Universities and Hispanic-Serving
independent private organization in
must be at least 51% owned by a Institutions) and private and voluntary
accordance with EPA’s 8% or 10%
socially and economically organizations controlled by individuals
statute as applicable.
disadvantaged individual, or in the case who are socially and economically
(2) Such certifications shall be
of a publicly traded company, at least disadvantaged.
considered acceptable for establishing
51% of the stock must be owned by one (e) Individuals not members of
MBE or WBE status, as appropriate,
or more socially and economically designated groups. Nothing in this
under EPA’s DBE Program as long as the
disadvantaged individuals, and the section shall prohibit any member of a
certification meets EPA’s U.S.
management and daily business racial or ethnic group that is not
citizenship requirement under § 33.202
operations of the business concern must designated as socially and economically
or § 33.203.
be controlled by such individuals. (See disadvantaged under paragraph (d) of
(3) An entity may only apply to EPA
also 13 CFR 124.109 for special rules this section from establishing that they
for MBE or WBE certification under the
applicable to Indian tribes and Alaska have been impeded in developing a
procedures set forth in § 33.205 if that
Native Corporations; 13 CFR 124.110 for business concern as a result of racial or
entity first is unable to obtain MBE or
special rules applicable to Native ethnic discrimination.
WBE certification under paragraphs (a)
Hawaiian Organizations). (f) Rebuttal of presumptions. The (1) through (3) of this section.
(b) Socially disadvantaged individual. presumptions established by paragraph (b) [Reserved].
A socially disadvantaged individual is a (d) of this section may be rebutted in
person who has been subjected to racial accordance with § 33.209 with respect § 33.205 How does an entity become
or ethnic prejudice or cultural bias to a particular entity if it is reasonably certified by EPA?
because of his or her identity as a established that the individual at issue (a) Filing an application. In
member of a group without regard to his is not experiencing impediments to accordance with § 33.204, an entity may
or her individual qualities and as developing such entity as a result of the apply to EPA’s Office of Small and
further defined by the implementing individual’s identification as a member Disadvantaged Business Utilization
regulations of section 8(a)(5) of the of a specified group. (EPA OSDBU) for certification as an
Small Business Act (15 U.S.C. 637(a)(5); (g) Joint ventures. MBE or WBE. EPA’s Regional Offices
13 CFR 124.103; see also 13 CFR (1) A joint venture may be considered will provide further information and
124.109 for special rules applicable to owned and controlled by socially and required application forms to any entity
Indian tribes and Alaska Native economically disadvantaged interested in MBE or WBE certification.
Corporations; 13 CFR 124.110 for individuals, notwithstanding the size of The applicant must attest to the
special rules applicable to Native such joint venture, if a party to the joint accuracy and truthfulness of the
Hawaiian Organizations). venture is an entity that is owned and information on the application form.
(c) Economically disadvantaged controlled by a socially and This shall be done either in the form of
individual. An economically economically disadvantaged individual, an affidavit sworn to by the applicant
disadvantaged individual is a socially and that entity owns 51% of the joint before a person who is authorized by
disadvantaged individual whose ability venture. state law to administer oaths or in the
form of an unsworn declaration application for certification. EPA (v) Obtain a statement from the entity
executed under penalty of perjury of the OSDBU will issue a written decision to of the type of work it prefers to perform
laws of the United States. The the entity setting forth EPA OSDBU’s for EPA recipients under the DBE
application must include evidence reasons for disapproval. Program and its preferred locations for
demonstrating that the entity is owned (e) Evaluation standards. (1) An performing the work, if any; and
or controlled by one or more individuals entity’s eligibility shall be evaluated on (vi) Obtain or compile a list of the
claiming disadvantaged status under the basis of present circumstances. An equipment owned by or available to the
EPA’s 8% statute or owned and entity shall not be denied certification entity and the licenses the entity and its
controlled by one or more individuals based solely on historical information key personnel possess to perform the
claiming disadvantaged status under indicating a lack of ownership and/or work it seeks to do for EPA recipients
EPA’s 10% statute, along with control of the firm by socially and under the DBE Program.
certifications or narratives regarding the economically disadvantaged individuals
disadvantaged status of such at some time in the past, if the entity § 33.206 Is there a list of certified MBEs
individuals. In addition, the application currently meets the ownership and/or and WBEs?
must include documentation of a denial control standards of this subpart.
of certification by a Federal agency, EPA OSDBU will maintain a list of
(2) Entities seeking MBE or WBE certified MBEs and WBEs on EPA
State government, local government, certification shall cooperate fully with
Indian Tribal government, or OSDBU’s Home Page on the Internet.
requests for information relevant to the Any interested person may also obtain
independent private organization, if certification process. Failure or refusal
applicable. a copy of the list from EPA OSDBU.
to provide such information is a ground
(b) Application processing. EPA for denial of certification. § 33.207 Can an entity reapply to EPA for
OSDBU will advise each applicant (3) In making its certification MBE or WBE certification?
within 15 days, whenever practicable, determination, EPA OSDBU may
after receipt of an application whether An entity which has been denied
consider whether an entity has MBE or WBE certification may reapply
the application is complete and suitable exhibited a pattern of conduct
for evaluation and, if not, what for certification at any time 12 months
indicating its involvement in attempts or more after the date of the most recent
additional information or action is to evade or subvert the intent or
required. EPA OSDBU shall make its determination by EPA OSDBU to
requirements of the DBE Program. decline the application.
certification decision within 30 days of (4) EPA OSDBU shall not consider the
receipt of a complete and suitable issue of whether an entity performs a § 33.208 How long does an MBE or WBE
application package, whenever commercially useful function in making certification from EPA last?
practicable. The burden is on the
its certification determination.
applicant to demonstrate that those Once EPA OSDBU certifies an entity
Consideration of whether an entity
individuals claiming disadvantaged to be an MBE or WBE by placing it on
performs a commercially useful
status own or control the entity under the EPA OSDBU list of certified MBEs
function or is a regular dealer pertains
EPA’s 8% statute or own and control the and WBEs specified in § 33.206, the
solely to counting toward MBE and
entity under EPA’s 10% statute. entity will generally remain on the list
(c) Ownership and/or control WBE objectives as provided in subpart
for a period of three years from the date
determination. EPA OSDBU first will E of this part.
of its certification. To remain on the list
determine whether those individuals (5) Information gathered as part of the
after three years, an entity must submit
claiming disadvantaged status own or certification process that may
a new application and receive a new
control the applicant entity under EPA’s reasonably be regarded as proprietary or
certification.
8% statute or own and control the other confidential business information
applicant entity under EPA’s 10% will be safeguarded from disclosure to § 33.209 Can EPA re-evaluate the MBE or
statute. If EPA OSDBU determines that unauthorized persons, consistent with WBE status of an entity after EPA certifies
the applicant does not meet the applicable Federal, State, and local law. it to be an MBE or WBE?
ownership and/or control requirements (6) To assist in making EPA OSDBU’s (a) EPA OSDBU may initiate a
of this subpart, EPA OSDBU will issue certification determination, EPA certification determination whenever it
a written decision to the entity rejecting OSDBU itself may take the following receives credible information calling
the application and set forth the reasons steps: into question an entity’s eligibility as an
for disapproval. (i) Perform an on-site visit to the MBE or WBE. Upon its completion of a
(d) Disadvantaged determination. offices of the entity. Interview the certification determination, EPA
Once EPA OSDBU determines whether principal officers of the entity and OSDBU will issue a written
an applicant meets the ownership and/ review their resumes and/or work determination regarding the MBE or
or control requirements of this subpart, histories. Perform an on-site visit to WBE status of the questioned entity.
EPA OSDBU will determine whether the local job sites if there are such sites on
applicable disadvantaged status which the entity is working at the time (b) If EPA OSDBU finds that the entity
requirements under EPA’s 8% or 10% of the certification investigation. does not qualify as an MBE or WBE,
statute have been met. If EPA OSDBU Already existing site visit reports may EPA OSDBU will decertify the entity as
determines that the applicable be relied upon in making the an MBE or WBE, and immediately
disadvantaged status requirements have certification; remove the entity from the EPA OSDBU
been met, EPA OSDBU shall notify the (ii) If the entity is a corporation, list of certified MBEs and WBEs.
applicant that it has been certified and analyze the ownership of stock in the (c) If EPA OSDBU finds that the entity
place the MBE or WBE on EPA entity; continues to qualify as an MBE or WBE,
OSDBU’s list of qualified MBEs and (iii) Analyze the bonding and the determination remains in effect for
WBEs. If EPA OSDBU determines that financial capacity of the entity; three years from the date of the decision
the applicable disadvantaged status (iv) Determine the work history of the under the same conditions as if the
requirements have not been met, EPA entity, including contracts it has entity had been granted MBE or WBE
OSDBU will reject the entity’s received and work it has completed; certification under § 33.205.
§ 33.210 Does an entity certified as an if the Director determines that there was or deceitful statements or
MBE or WBE by EPA need to keep EPA good cause, beyond the control of the representations, or indicates a serious
informed of any changes which may affect appellant or challenger, for the late lack of business integrity or honesty,
the entity’s certification? filing of the appeal or challenge. may be subject to sanctions under
(a) An entity certified as an MBE or (d) No specific format is required for § 33.105.
WBE by EPA OSDBU must provide EPA an appeal or challenge. However, the
OSDBU, every year on the anniversary appeal or challenge must include Subpart C—Good Faith Efforts
of the date of its certification, an information and arguments concerning § 33.301 What does this subpart require?
affidavit sworn to by the entity’s owners why EPA OSDBU’s MBE or WBE
before a person who is authorized by A recipient, including one exempted
certification determination should be
state law to administer oaths or an from applying the fair share objective
reversed. For challenges in which a
unsworn declaration executed under requirements by § 33.411, is required to
third party questions EPA OSDBU’s
penalty of perjury of the laws of the make the following good faith efforts
determination to certify an entity as an
United States. This affidavit must affirm whenever procuring construction,
MBE or WBE under § 33.205 or § 33.209,
that there have been no changes in the equipment, services and supplies under
the third party must also send a copy of
entity’s circumstances affecting its an EPA financial assistance agreement,
the challenge to the entity whose MBE
ability to meet disadvantaged status, even if it has achieved its fair share
or WBE certification is being objectives under subpart D of this part:
ownership, and/or control requirements questioned. In addition, the Director (a) Ensure DBEs are made aware of
of this subpart or any material changes shall request information and arguments contracting opportunities to the fullest
in the information provided in its from that entity as to why EPA OSDBU’s extent practicable through outreach and
application form. Failure to comply may determination to certify the entity as an recruitment activities. For Indian Tribal,
result in the loss of MBE or WBE MBE or WBE should be upheld. State and Local and Government
certification under EPA’s DBE Program. (e) The Director makes his/her appeal recipients, this will include placing
(b) An entity certified as an MBE or or challenge decision based solely on DBEs on solicitation lists and soliciting
WBE by EPA OSDBU must inform EPA the administrative record and does not them whenever they are potential
OSDBU in writing of any change in conduct a hearing. The Director may sources.
circumstance affecting the MBE’s or supplement the record by adding (b) Make information on forthcoming
WBE’s ability to meet disadvantaged relevant information made available by opportunities available to DBEs and
status, ownership, and/or control any other source, including the EPA arrange time frames for contracts and
requirements of this subpart or any Office of Inspector General; Federal, establish delivery schedules, where the
material change in the information State, or local law enforcement requirements permit, in a way that
provided in its application form. The authorities; an EPA recipient; or a encourages and facilitates participation
MBE or WBE must attach supporting private party. by DBEs in the competitive process.
documentation describing in detail the (f) Consistent with Federal law, the This includes, whenever possible,
nature of such change. The notice from Director shall make available, upon the posting solicitations for bids or
the MBE or WBE must take the form of request of the appellant, challenger or proposals for a minimum of 30 calendar
an affidavit sworn to by the applicant the entity affected by the Director’s days before the bid or proposal closing
before a person who is authorized by appeal or challenge decision, any date.
State law to administer oaths or of an supplementary information the Director (c) Consider in the contracting process
unsworn declaration executed under receives from any source as described in whether firms competing for large
penalty of perjury of the laws of the paragraph (e) of this section. contracts could subcontract with DBEs.
United States. The MBE or WBE must (g) Pending the Director’s appeal or For Indian Tribal, State and local
provide the written notification within challenge decision, EPA OSDBU’s MBE Government recipients, this will include
30 calendar days of the occurrence of or WBE certification determination dividing total requirements when
the change. remains in effect. The Director does not economically feasible into smaller tasks
stay the effect of its MBE or WBE or quantities to permit maximum
§ 33.211 What is the process for appealing certification determination while he/she
or challenging an EPA MBE or WBE participation by DBEs in the
certification determination?
is considering an appeal or challenge. competitive process.
(h) The Director shall reverse EPA (d) Encourage contracting with a
(a) An entity which has been denied OSDBU’s MBE or WBE certification consortium of DBEs when a contract is
MBE or WBE certification by EPA determination only if there was a clear too large for one of these firms to handle
OSDBU under § 33.205 or § 33.209 may and significant error in the processing of individually.
appeal that denial. A third party may the certification or if EPA OSDBU failed (e) Use the services and assistance of
challenge EPA OSDBU’s determination to consider a significant material fact the SBA and the Minority Business
to certify an entity as an MBE or WBE contained within the entity’s Development Agency of the Department
under § 33.205 or § 33.209. application for MBE or WBE of Commerce.
(b) Appeals and challenges must be certification. (f) If the prime contractor awards
sent to the Director of OSDBU at (i) All decisions under this section are subcontracts, require the prime
Environmental Protection Agency, 1200 administratively final. contractor to take the steps in
Pennsylvania Avenue, NW., Mail Code paragraphs (a) through (e) of this
1230T, Washington, DC 20460. § 33.212 What conduct is prohibited by
section.
(c) The appeal or challenge must be this subpart?
sent to the Director of OSDBU (Director) An entity that does not meet the § 33.302 Are there any additional contract
within 90 days of the date of EPA eligibility criteria of this subpart may administration requirements?
OSDBU’s MBE or WBE certification not attempt to participate as an MBE or (a) A recipient must require its prime
determination. The Director may accept WBE in contracts awarded under EPA contractor to pay its subcontractor for
an appeal or challenge filed later than financial assistance agreements or be satisfactory performance no more than
90 days after the date of EPA OSDBU’s counted as such by an EPA recipient. 30 days from the prime contractor’s
MBE or WBE certification determination An entity that submits false, fraudulent, receipt of payment from the recipient.
(b) A recipient must be notified in § 33.303 Are there special rules for loans assistance agreement for the benefit of
writing by its prime contractor prior to under EPA financial assistance Native Americans, is required to solicit
any termination of a DBE subcontractor agreements? and recruit Indian organizations and
for convenience by the prime contractor. A recipient of an EPA financial Indian-owned economic enterprises and
(c) If a DBE subcontractor fails to assistance agreement to capitalize a give them preference in the award
complete work under the subcontract revolving loan fund, such as a State process prior to undertaking the six
for any reason, the recipient must under the CWSRF or DWSRF or an good faith efforts. If the efforts to solicit
require the prime contractor to employ eligible entity under the Brownfields and recruit Indian organizations and
the six good faith efforts described in Cleanup Revolving Loan Fund program, Indian-owned economic enterprises is
§ 33.301 if soliciting a replacement must require that borrowers receiving not successful, then the recipient must
subcontractor. identified loans comply with the good
(d) A recipient must require its prime follow the six good faith efforts.
faith efforts described in § 33.301 and
contractor to employ the six good faith the contract administration (d) Native Americans are defined in
efforts described in § 33.301 even if the requirements of §3.302. This provision § 33.103 to include American Indians,
prime contractor has achieved its fair does not require that such private and Eskimos, Aleuts and Native Hawaiians.
share objectives under subpart D of this nonprofit borrowers expend identified
part. loan funds in compliance with any Subpart D—Fair Share Objectives
(e) A recipient must require its prime other procurement procedures
contractor to provide EPA Form 6100– § 33.401 What does this subpart require?
contained in 40 CFR part 30, part 31, or
2—DBE Program Subcontractor part 35, subpart O, as applicable. A recipient must negotiate with the
Participation Form to all of its DBE appropriate EPA award official or his/
subcontractors. EPA Form 6100–2 gives § 33.304 Must a Native American (either as her designee, fair share objectives for
a DBE subcontractor the opportunity to an individual, organization, Tribe or Tribal
Government) recipient or prime contractor MBE and WBE participation in
describe the work the DBE procurement under the financial
subcontractor received from the prime follow the six good faith efforts?
(a) A Native American (either as an assistance agreements.
contractor, how much the DBE
subcontractor was paid and any other individual, organization, corporation, § 33.402 Are there special rules for loans
concerns the DBE subcontractor might Tribe or Tribal Government) recipient or under EPA financial assistance
have, for example reasons why the DBE prime contractor must follow the six agreements?
subcontractor believes it was terminated good faith efforts only if doing so would
not conflict with existing Tribal or A recipient of an EPA financial
by the prime contractor. DBE
Federal law, including but not limited assistance agreement to capitalize
subcontractors may send completed
to the Indian Self-Determination and revolving loan funds must either apply
copies of EPA Form 6100–2 directly to
Education Assistance Act (25 U.S.C. its own fair share objectives negotiated
the appropriate EPA DBE Coordinator.
(f) A recipient must require its prime 450e), which establishes, among other with EPA under § 33.401 to identified
contractor to have its DBE things, that any federal contract, loans using a substantially similar
subcontractors complete EPA Form subcontract, grant, or subgrant awarded relevant geographic market, or negotiate
6100–3—DBE Program Subcontractor to Indian organizations or for the benefit separate fair share objectives with
Performance Form. A recipient must of Indians, shall require preference in entities receiving identified loans, as
then require its prime contractor to the award of subcontracts and subgrants long as such separate objectives are
include all completed forms as part of to Indian organizations and to Indian- based on demonstrable evidence of
the prime contractor’s bid or proposal owned economic enterprises. availability of MBEs and WBEs in
package. (b) Tribal organizations awarded an accordance with this subpart. If
(g) A recipient must require its prime EPA financial assistance agreement have procurements will occur over more than
contractor to complete and submit EPA the ability to solicit and recruit Indian one year, the recipient may choose to
Form 6100–4—DBE Program organizations and Indian-owned apply the fair share objective in place
Subcontractor Utilization Form as part economic enterprises and give them either for the year in which the
of the prime contractor’s bid or proposal preference in the award process prior to identified loan is awarded or for the
package. undertaking the six good faith efforts. year in which the procurement action
(h) Copies of EPA Form 6100–2—DBE Tribal governments with promulgated occurs. The recipient must specify this
Program Subcontractor Participation tribal laws and regulations concerning choice in the financial assistance
Form, EPA Form 6100–3—DBE Program the solicitation and recruitment of agreement, or incorporate it by reference
Subcontractor Performance Form and Native-owned and other minority therein.
EPA Form 6100–4—DBE Program business enterprises, including women-
Subcontractor Utilization Form may be owned business enterprises, have the § 33.403 What is a fair share objective?
obtained from EPA OSDBU’s Home Page discretion to utilize these tribal laws
on the Internet or directly from EPA and regulations in lieu of the six good A fair share objective is an objective
OSDBU. faith efforts. If the effort to recruit based on the capacity and availability of
(i) A recipient must ensure that each Indian organizations and Indian-owned qualified, certified MBEs and WBEs in
procurement contract it awards contains economic enterprises is not successful, the relevant geographic market for the
the term and condition specified in the then the recipient must follow the six procurement categories of construction,
Appendix concerning compliance with good faith efforts. All tribal recipients equipment, services and supplies
the requirements of this part. A still must retain records documenting compared to the number of all qualified
recipient must also ensure that this term compliance in accordance with § 33.501 entities in the same market for the same
and condition is included in each and must report to EPA on their procurement categories, adjusted, as
procurement contract awarded by an accomplishments in accordance with appropriate, to reflect the level of MBE
entity receiving an identified loan under § 33.502. and WBE participation expected absent
a financial assistance agreement to (c) Any recipient, whether or not the effects of discrimination. A fair
capitalize a revolving loan fund. Native American, of an EPA financial share objective is not a quota.
§ 33.404 When must a recipient negotiate number of all businesses to derive a extent it can be related to the
fair share objectives with EPA? base figure for the relative availability of opportunities for MBEs and WBEs to
A recipient must submit its proposed MBEs and WBEs in the market. perform in the program.
MBE and WBE fair share objectives and (2) Data from a Disparity Study. Use (3) If a recipient attempts to make an
supporting documentation to EPA a percentage figure derived from data in adjustment to its base figure to account
within 120 days after its acceptance of a valid, applicable disparity study for the continuing effects of past
its financial assistance award. EPA must conducted within the preceding ten discrimination (often called the ‘‘but
respond in writing to the recipient’s years comparing the available MBEs and for’’ factor) or the effects of another
submission within 30 days of receipt, WBEs in the relevant geographic market ongoing MBE/WBE program, the
either agreeing with the submission or with their actual usage by entities adjustment must be based on
providing initial comments for further procuring in the categories of demonstrable evidence that is logically
negotiation. Failure to respond within construction, equipment, services, and and directly related to the effect for
this time frame may be considered as supplies. which the adjustment is sought.
agreement by EPA with the fair share (3) The Objective of Another EPA
objectives submitted by the recipient. Recipient. A recipient may use, as its § 33.406 May a recipient designate a lead
MBE and WBE fair share objectives agency for fair share objective negotiation
base figure, the fair share objectives of
purposes?
must be agreed upon by the recipient another EPA recipient if the recipient
and EPA before funds may be expended demonstrates that it will use the same, If an Indian Tribal, State or local
for procurement under the recipient’s or substantially similar, relevant Government has more than one agency
financial assistance agreement. geographic market as the other EPA that receives EPA financial assistance,
recipient. (See § 33.411 for exemptions the agencies within that Government
§ 33.405 How does a recipient determine may designate a lead agency to negotiate
its fair share objectives?
from fair share objective negotiations).
(4) Alternative Methods. Subject to MBE and WBE fair share objectives with
(a) A recipient must determine its fair EPA approval, other methods may be EPA to be used by each of the agencies.
share objectives based on demonstrable used to determine a base figure for the Each agency must otherwise negotiate
evidence of the number of certified overall objective. Any methodology with EPA separately its own MBE and
MBEs and WBEs that are ready, willing, chosen must be based on demonstrable WBE fair share objectives.
and able to perform in the relevant evidence of local market conditions and
geographic market for each of the four § 33.407 How long do MBE and WBE fair
be designed to ultimately attain an share objectives remain in effect?
procurement categories (equipment, objective that is rationally related to the
construction, services, and supplies). Once MBE and WBE fair share
relative availability of MBEs and WBEs objectives have been negotiated, they
The relevant geographic market is the in the relevant geographic market.
area of solicitation for the procurement will remain in effect for three fiscal
(c) Step 2. After calculating a base years unless there are significant
as determined by the recipient. The figure, a recipient must examine the
market may be a geographic region of a changes to the data supporting the fair
evidence available in its jurisdiction to share objectives. The fact that a
State, an entire State, or a multi-State determine what adjustment, if any, is
area. Fair share objectives must reflect disparity study utilized in negotiating
needed to the base figure in order to fair share objectives has become more
the recipient’s determination of the arrive at the fair share objective.
level of MBE and WBE participation it than ten years old during the three-year
(1) There are many types of evidence
would expect absent the effects of period does not by itself constitute a
that must be considered when adjusting
discrimination. A recipient may significant change requiring
the base figure. These include:
combine the four procurement renegotiation.
(i) The current capacity of MBEs and
categories into one weighted objective WBEs to perform contract work under § 33.408 May a recipient use race and/or
for MBEs and one weighted objective for EPA financial assistance agreements, as gender conscious measures as part of this
WBEs. measured by the volume of work MBEs program?
(b) Step 1. A recipient must first and WBEs have performed in recent (a) Should the good faith efforts
determine a base figure for the relative years; described in subpart C of this part or
availability of MBEs and WBEs. The (ii) Evidence from disparity studies other race and/or gender neutral
following are examples of approaches conducted anywhere within the measures prove to be inadequate to
that a recipient may take. Any recipient’s jurisdiction, to the extent it achieve an established fair share
percentage figure derived from one of is not already accounted for in the base objective, race and/or gender conscious
these examples should be considered a figure; and action (e.g., apply the subcontracting
basis from which a recipient begins (iii) If the base figure is the objective suggestion in § 33.301(c) to MBEs and
when examining evidence available in of another EPA recipient, it must be WBEs) is available to a recipient and its
its jurisdiction. adjusted for differences in the local prime contractor to more closely
(1) MBE and WBE Directories and market and the recipient’s contracting achieve the fair share objectives, subject
Census Bureau Data. Separately program. to § 33.409. Under no circumstances are
determine the number of certified MBEs (2) A recipient may also consider race and/or gender conscious actions
and WBEs that are ready, willing, and available evidence from related fields required by EPA.
able to perform in the relevant that affect the opportunities for MBEs (b) Any use of race and/or gender
geographic market for each procurement and WBEs to form, grow and compete. conscious efforts must not result in the
category from a MBE/WBE directory, These include, but are not limited to: selection of an unqualified MBE or
such as a bidder’s list. Using the Census (i) Statistical disparities in the ability WBE.
Bureau’s County Business Pattern (CBP) of MBEs and WBEs to get the financing,
database, determine the number of all bonding and insurance required to § 33.409 May a recipient use quotas as
qualified businesses available in the participate; and part of this program?
market that perform work in the same (ii) Data on employment, self- A recipient is not permitted to use
procurement category. Separately divide employment, education, training and quotas in procurements under EPA’s 8%
the number of MBEs and WBEs by the union apprenticeship programs, to the or 10% statute.
§ 33.410 Can a recipient be penalized for objectives will not apply to an Insular (3) The procurement on which the
failing to meet its fair share objectives? Area or Indian Tribal Government entity bid or quoted, and when; and
A recipient cannot be penalized, or recipient until three calendar years after (4) Entity’s status as an MBE/WBE or
treated by EPA as being in the effective date of this part. non-MBE/WBE.
noncompliance with this subpart, solely Furthermore, in accordance with (c) Exemptions. A recipient of an EPA
because its MBE or WBE participation § 33.411(c), tribal and intertribal financial assistance agreement in the
does not meet its applicable fair share consortia recipients of program grants amount of $250,000 or less for any
objective. However, EPA may take which can be included in Performance single assistance agreement, or of more
remedial action under § 33.105 for a Partnership Grants (PPGs) under 40 CFR than one financial assistance agreement
recipient’s failure to comply with other part 35, subpart B are not required to with a combined total of $250,000 or
provisions of this part, including, but apply the fair share objective less in any one fiscal year, is exempt
not limited to, the good faith efforts requirements of this subpart to such from the paragraph (b) of this section
requirements described in subpart C of grants. requirement to create and maintain a
this part. bidders list. Also, a recipient under the
Subpart E—Recordkeeping and CWSRF, DWSRF, or BCRLF Program is
§ 33.411 Who may be exempted from this Reporting not required to apply the paragraph (b)
subpart?
of this section bidders list requirement
(a) General. A recipient of an EPA § 33.501 What are the recordkeeping
requirements of this part? of this subpart to an entity receiving an
financial assistance agreement in the identified loan in an amount of
amount of $250,000 or less for any (a) A recipient, including those
$250,000 or less, or to an entity
single assistance agreement, or of more recipients exempted under § 33.411
receiving more than one identified loan
than one financial assistance agreement from the requirement to apply the fair
with a combined total of $250,000 or
with a combined total of $250,000 or share objectives, must maintain all
less in any one fiscal year. This
less in any one fiscal year, is not records documenting its compliance
exemption is limited to the paragraph
required to apply the fair share objective with the requirements of this part,
(b) of this section bidders list
requirements of this subpart. This including documentation of its, and its
requirements of this subpart.
exemption is limited to the fair share prime contractors’, good faith efforts
objective requirements of this subpart. and data relied upon in formulating its § 33.502 What are the reporting
(b) Clean Water State Revolving Fund fair share objectives. Such records must requirements of this part?
(CWSRF) Program, Drinking Water State be retained in accordance with MBE and WBE participation must be
Revolving Fund (DWSRF) Program, and applicable record retention reported by all recipients, including
Brownfields Cleanup Revolving Loan requirements for the recipient’s those recipients exempted under
Fund (BCRLF) Program Identified Loan financial assistance agreement. § 33.411 from the requirement to apply
Recipients. A recipient under the (b) A recipient of a Continuing the fair share objectives, on EPA Form
CWSRF, DWSRF, or BCRLF Program is Environmental Program Grant or other 5700–52A. Recipients of Continuing
not required to apply the fair share annual grant must create and maintain Environmental Program Grants under 40
objective requirements of this subpart to a bidders list. In addition, a recipient of CFR part 35, subpart A; recipients of
an entity receiving an identified loan in an EPA financial assistance agreement Performance Partnership Grants (PPGs)
an amount of $250,000 or less or to an to capitalize a revolving loan fund also under 40 CFR part 35, subpart B;
entity receiving more than one must require entities receiving General Assistance Program (GAP)
identified loan with a combined total of identified loans to create and maintain grants for tribal governments and
$250,000 or less in any one fiscal year. a bidders list if the recipient of the loan intertribal consortia; and institutions of
This exemption is limited to the fair is subject to, or chooses to follow, higher education, hospitals and other
share objective requirements of this competitive bidding requirements. (See non-profit organizations receiving
subpart. e.g., § 33.303). The purpose of a bidders financial assistance agreements under
(c) Tribal and Intertribal Consortia list is to provide the recipient and 40 CFR part 30, will report on MBE and
recipients of program grants which can entities receiving identified loans who WBE participation on an annual basis.
be included in Performance Partnership conduct competitive bidding with as All other financial assistance agreement
Grants (PPGs) under 40 CFR Part 35, accurate a database as possible about the recipients, including recipients of
Subpart B. Tribal and Intertribal universe of MBE/WBE and non-MBE/ financial assistance agreements
consortia recipients of PPG eligible WBE prime and subcontractors. The list capitalizing revolving loan funds, will
grants are not required to apply the fair must include all firms that bid or quote report on MBE and WBE participation
share objective requirements of this on prime contracts, or bid or quote semiannually. Recipients of financial
subpart to those grants. This exemption subcontracts on EPA assisted projects, assistance agreements that capitalize
is limited to the fair share objective including both MBE/WBEs and non- revolving loan programs must require
requirements of this subpart. MBE/WBEs. The bidders list must only entities receiving identified loans to
(d) Technical Assistance Grant (TAG) be kept until the grant project period submit their MBE and WBE
Program Recipients. A recipient of a has expired and the recipient is no participation reports on a semiannual
TAG is not required to apply the fair longer receiving EPA funding under the basis to the financial assistance
share objective requirements of this grant. For entities receiving identified agreement recipient, rather than to EPA.
subpart to that grant. This exemption is loans, the bidders list must only be kept
limited to the fair share objective until the project period for the § 33.503 How does a recipient calculate
identified loan has ended. The MBE and WBE participation for reporting
requirements of this subpart. purposes?
following information must be obtained
§ 33.412 Must an Insular Area or Indian from all prime and subcontractors: (a) General. Only certified MBEs and
Tribal Government recipient negotiate fair (1) Entity’s name with point of WBEs are to be counted towards MBE/
share objectives? contact; WBE participation. Amounts of MBE
The requirements in this subpart (2) Entity’s mailing address, telephone and WBE participation are calculated as
regarding the negotiation of fair share number, and e-mail address; a percentage of total financial assistance
agreement project procurement costs, for the purpose of meeting MBE or WBE Subpart M—[Amended]
which include the match portion of the objectives.
project costs, if any. For recipients of (2) The MBE or WBE must itself own ■ 13. The authority citation for part 35,
financial assistance agreements that and operate at least one fully licensed, subpart M, continues to read as follows:
capitalize revolving loan programs, the insured, and operational truck used on
total amount is the total procurement the contract. Authority: 42 U.S.C. 9617(e); sec. 9(g), E.O.
dollars in the amount of identified loans 12580, 52 FR 2923, 3 CFR, 1987 Comp., p.
Appendix A to Part 33—Term and 193.
equal to the capitalization grant amount.
(b) Ineligible project costs. If all Condition
§ 35.4170 [Amended]
project costs attributable to MBE and Each procurement contract signed by an
WBE participation are not eligible for EPA financial assistance agreement recipient, ■ 14. Section 35.4170(b) is removed and
funding under the EPA financial including those for an identified loan under
reserved.
assistance agreement, the recipient may an EPA financial assistance agreement
choose to report the percentage of MBE capitalizing a revolving loan fund, must § 35.4205 [Amended]
include the following term and condition:
and WBE participation based on the The contractor shall not discriminate on
total eligible and non-eligible costs of ■ 15. Section 35.4205(g) is removed.
the basis of race, color, national origin or sex
the project. in the performance of this contract. The § 35.4240 [Amended]
(c) Joint ventures. For joint ventures, contractor shall carry out applicable
MBE and WBE participation consists of requirements of 40 CFR part 33 in the award ■ 16. Section 35.4240(e) is removed and
the portion of the dollar amount of the and administration of contracts awarded reserved.
joint venture attributable to the MBE or under EPA financial assistance agreements.
WBE. If an MBE’s or WBE’s risk of loss, Failure by the contractor to carry out these Subpart O—[Amended]
control or management responsibilities requirements is a material breach of this
is not commensurate with its share of contract which may result in the termination
of this contract or other legally available ■ 17. The authority citation for part 35,
the profit, the Agency may direct an remedies. subpart O, continues to read as follows:
adjustment in the percentage of MBE or
WBE participation. Authority: 42 U.S.C. 9601 et seq.
PART 35—[AMENDED]
(d) Central Purchasing or § 35.6015 [Amended]
Procurement Centers. A recipient must Subpart E—[Amended]
report MBE and WBE participation from ■ 18. Section 35.6015(a) is amended by
its central purchasing or procurement ■ 6. The authority citation for part 35, removing the definitions for ‘‘Minority
centers. subpart E, continues to read as follows: Business Enterprise (MBE)’’ and
(e) Brokers. A recipient may not count Authority: Secs. 109(b), 201 through 205, ‘‘Women’s Business Enterprise (WBE)’’.
expenditures to a MBE or WBE that acts 207, 208(d), 210 through 212, 215 through
merely as a broker or passive conduit of 217, 304(d)(3), 313, 501, 511, and 516(b) of § 35.6550 [Amended]
funds, without performing, managing, or the Clean Water Act, as amended, 33 U.S.C.
supervising the work of its contract or 1251 et seq. ■ 19. Section 35.6550(a)(8) is removed
subcontract in a manner consistent with and reserved.
§ 35.936–7 [Removed]
normal business practices. § 35.6580 [Amended]
(1) Presumption. If 50% or more of the ■ 7. Section 35.936–7 is removed.
total dollar amount of a MBE or WBE’s § 35.938–9 [Amended] ■ 20. Section 35.6580 is removed.
prime contract is subcontracted to a
non-DBE, the MBE or WBE prime ■ 8. Section 35.938–9 is amended by § 35.6610 [Amended]
contractor will be presumed to be a removing and reserving paragraph
broker, and no MBE or WBE (b)(2). ■ 21. Section 35.6610(c) is removed and
participation may be reported. reserved.
(2) Rebuttal. The MBE or WBE prime Subpart K—[Amended]
§ 35.6665 [Removed]
contractor may rebut this presumption ■ 9. The authority citation for part 35,
by demonstrating that its actions are subpart K, continues to read as follows: ■ 22. Section 35.6665 is removed.
consistent with normal practices for
prime contractors in its business and Authority: Secs. 205(m), 501(a) and title VI PART 40—[Amended]
of the Clean Water Act, as amended, 42
that it will actively perform, manage
U.S.C. 1285(m), 33 U.S.C. 1361(a), 33 U.S.C.
and supervise the work under the 1381–1387. ■ 21. The authority citation for part 40
contract. is revised to read as follows:
(f) MBE or WBE Truckers/Haulers. A § 35.3145 [Amended]
recipient may count expenditures to an Authority: 7 U.S.C. 136 et seq.; 15 U.S.C.
■ 10. Section 35.3145 is amended by 2609 et seq.; 33 U.S.C. 1254 et seq. and 1443;
MBE or WBE trucker/hauler only if the removing paragraphs (d) and (e).
MBE or WBE trucker/hauler is 42 U.S.C. 241 et seq., 300f et seq., 1857 et
seq., 1891 et seq., and 6901 et seq.
performing a commercially useful Subpart L—[Amended]
function. The following factors should § 40.145–3 [Amended]
be used in determining whether an MBE ■ 11. The authority citation for part 35,
or WBE trucker/hauler is performing a subpart L, continues to read as follows: ■ 22. Section 40.145–3(c) is removed
commercially useful function: Authority: Section 1452 of the Safe and reserved.
(1) The MBE or WBE must be Drinking Water Act, as amended, 42 U.S.C. [FR Doc. E8–6003 Filed 3–25–08; 8:45 am]
responsible for the management and 300j-12.

BILLING CODE 6560–50–P
supervision of the entire trucking/
hauling operation for which it is § 35.3575 [Amended]
responsible on a particular contract, and ■ 12. Section 35.3575(d) is removed and
there cannot be a contrived arrangement reserved.

Rule: Participation by Disadvantaged Business Enterprises in Procurement Under EPA Financial Assistance Agreements

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Rule: Participation by Disadvantaged Business Enterprises in Procurement Under EPA Financial Assistance Agreements

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15904 Federal Register / Vol. 73, No.

59 / Wednesday, March 26, 2008 / Rules and Regulations

(2) [Reserved] government interest of remedying past 566–2605, by e-mail at

The Administrator of the Environmental

participate, on EPA assisted contracts. MBE/WBE and non-MBE/WBE prime and

13211, ‘‘Actions Concerning Regulations agency promulgating the rule must

33.303 Are there special rules for loans

responsible for the management and 300j-12.

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