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15906 Federal Register / Vol . 73 , No . 59 / Wednesday , March 26 , 2008 / Rules and Regulations
<br /> rule sets forth a narrowly tailored EPA negotiations . The specific changes are and controlled by socially and
<br /> program to serve the compelling summarized as follows ;
<br /> government interest of remedying past economically disadvantaged
<br /> and current racial discrimination P 1 . Certification individuals . However , the statutory
<br /> through agency-wide DBE procurement Under the current MBE/WBE ro am authority for EPA ' s DBE program
<br /> objectives . EPA intends to evaluate the EPA recognizes Small Business p requires ownership or control , Public
<br /> Law 102-389) ; and
<br /> propriety of the Disadvantaged Business Administration (SBA ) certifications or
<br /> Enterprise program in 7 years through certifications by a State or other Federal S . Women owned business
<br /> subsequent rulemaking Agency , or self-certifications. EPA enterprises .
<br /> for three
<br /> This final rule requires recipients to currently does not require WBEs to be yearPs as I nlg as the certifiedfications
<br /> will ltentity files
<br /> use race/gender-neutral measures to certified , an annual affidavit affirming that no
<br /> ensure DBEs have meaningful Under the new DBE program changes in circumstances have occurred
<br /> opportunities to bid on recipient- promulgated today , in order to be which affected the entity ' s status as an
<br /> sponsored procurements . It does not counted as an MBE or WBE under an MBE or WBE . Appeal procedures are
<br /> require recipients to use race/gender- EPA financial, assistance agreement , an provided for entities denied MBE or
<br /> conscious measures . However , if a entity will have to be certified as such . WBE certification , or anyone who
<br /> recipient elects to use such measures , EPA will require an MBE/WBE to first disagrees with EPA 's decision to certify
<br /> the recipient should satisfv itself that seek certification by a federal agency an entity as an MBE or WBE .
<br /> the measure meets all applicable legal ( e t; the Small Business Administration
<br /> requirements , including those (SBA ) , the Department of Transportation. 2 , Six Good Faith Efforts
<br /> established in Adarand, Because this (DOT)) , or by a State , locality , Indian The good faith efforts are activities by
<br /> rule only requires race/gender -neutral Tribe , or independent private a recipient and its prime contractor to
<br /> measures , it should not be subject to organization provided their applicable increase DBE awareness of procurement
<br /> strict judicial scrutiny . Even so , we criteria match those under section 8 (a ) opportunities through race/gender
<br /> believe this rule is narrowly tailored to (5 ) and ( 6 ) of the Small Business Act neutral efforts . Race/gender neutral
<br /> achieve a compelling governmental and SBA' s applicable 8 ( a ) Business efforts are ones which increase
<br /> interest consistent with Adarand . Development Program regulations . EPA awareness of contracting opportunities
<br /> EPA worked collaboratively on this will only consider certifying firms that in general , including outreach ,
<br /> rulemaking with various program offices cannot get certified by one of these recruitment and technical assistance .
<br /> within the Agency , the EPA Office of entities . Requiring firms to first seek For purposes of simplification , EPA has
<br /> General Counsel , and the EPA Regions , certification from other sources is combined the " Six Positive Efforts " of
<br /> We also held discussions with other beneficial for the business entity 40 CFR 30 .44 (b) applicable to
<br /> Federal agencies , including SBA and because an EPA certification is limited institutions of higher education ,
<br /> DOT whose DBE programs are in some in that it would only be accepted by hospitals and other non-profit
<br /> ways similar to ours , or have undergone EPA . Certifications from other sources organizations with the " Six Affirmative
<br /> changes similar to the ones we are have broader applications . Also , Steps " of 40 CFR 31. 36 (e) applicable to
<br /> implementing. EPA has also requiring firms to first seek certification State , Local and Indian Tribal
<br /> collaborated with the Civil Rights from other sources reduces the burden Government recipients and renamed
<br /> Division of DO) throughout the on the Agency associated with them the six " good faith efforts . " ,
<br /> rulemaking process . processing certifications . 3. Contract Administration
<br /> The creation and implementation of Requirements
<br /> M. Overview of Final Rule an EPA certification program is
<br /> This rulemaking removes all of EPA' s necessary because the statutory The rule adds additional contract
<br /> current MBE/WBE fair share objectives authority for EPA 's program includes administration requirements which are
<br /> and good faith efforts regulatory classifications of businesses that are not intended to prevent any " bait and
<br /> provisions and replaces them with DBE currently certified by other sources , switch " tactics at the subcontract level
<br /> provisions to be codified in the new 40 Businesses that fall within these by prime contractors which mac
<br /> CFR part 33 . In addition , this rule classifications would potentially have circumvent the spirit of the DBE
<br /> supersedes inconsistent provisions of no other option for certification to Program as well as other related
<br /> previous guidance documents for EPA ' s participate in EPA ' s DBE program , EPA requirements , Some of these
<br /> former MBE and WBE Program , anticipates that the following types of requirements include provisions
<br /> entities will have to be considered for intended to ensure that subcontractors
<br /> including , but not limited to , EPA 's certification by EPA : receive prompt payment from prime
<br /> " Guidance for Utilization s Small , 1 . Disabled American -owned firms ; contractors . In addition, this proposal
<br /> Minority , and VVamen ' s Business 2 . Private and voluntary organizations would require a recipient to be notified
<br /> Enterprises in Procurement Under controlled by individuals who are in writing before its prime contractor
<br /> Assistance Agreements " (the 1497 socially and✓economically could terminate a DBE subcontractor for
<br /> Guidance) , 62 FR 45645 , disadvantaged; convenience and then perform the work
<br /> There are six substantive changes this 3 . Women-owned and minority itself, Furthermore , when a DBE
<br /> rule will make to the way the program owned -businesses who cannot get subcontractor is terminated or fails tD
<br /> currently operates . Those changes certified under. DOT or SBA size criteria complete its work under the subcontract
<br /> involve : ( 1 ) Certification of minority and (EPA does not have size criteria) or by for any reason , the recipient must
<br /> women -owned businesses ; (2) the six a State Government, local Government, require the prime contractor to make
<br /> good faith efforts ; ( 3 ) contract Indian Tribal Government or good faith efforts if the prime contractor
<br /> administration requirements ; (4 ) independent private organization ; chooses to hire another subcontractor . A
<br /> negotiation of fair share goals ; ( 5 ) 4 , Businesses owned or controlled by recipient must also require its prime
<br /> recordkeeping and reporting socially and economically contractor to continue to make the good
<br /> requirements ; and (6 ) new requirements disadvantaged individuals (nate—SBA faith efforts even if the fair share
<br /> for Tribal and insular area fair share and DOT require an entity to be owned objectives in subpart D of the rule have
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