EDV-28-09-00013-P Minority and Women Business Enterprise Program

7/15/09 N.Y. St. Reg. EDV-28-09-00013-P

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 28

July 15, 2009

RULE MAKING ACTIVITIES

DEPARTMENT OF ECONOMIC DEVELOPMENT

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDV-28-09-00013-P

Minority and Women Business Enterprise Program

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of section 140.1 and addition of sections 144.9 and 144.10 to Title 5 NYCRR.

Statutory authority:

Executive Law, section 314(2-a)[c]

Subject:

Minority and Women Business Enterprise Program.

Purpose:

Create procedure to accept federal certification verification for MWBE applicants w/o requiring state certification process.

Text of proposed rule:

PART 140 OF THE REGULATIONS OF THE COMMISSIONER OF THE DEPARTMENT OF ECONOMIC DEVELOPMENT ARE HEREBY AMENDED TO READ AS FOLLOWS:

PART 140

DEFINITIONS

140.1(bb) Supplemental Application. The form that the DMWBD requires an applicant to submit for purposes of applying for minority-or women-owned business enterprise status in accordance with section 144.10 of this part.

PART 144 OF THE REGULATIONS OF THE COMMISSIONER OF THE DEPARTMENT OF ECONOMIC DEVELOPMENT ARE HEREBY AMENDED TO READ AS FOLLOWS:

PART 144

STATEWIDE CERTIFICATION PROGRAM

144.9 Acceptance of federal certification pursuant to Executive Law section 314(2-a) Provided all the criteria set forth in section 144.10 below have been satisfied, the DMWBD shall accept, in lieu of requiring the applicant to complete and submit the New York State minority and women owned business enterprise certification application, a current federal certification issued to the minority and women business enterprise pursuant to Title 49 CFR Part 26 or Title 13 CFR Part 124.

144.10 Criteria for acceptance of federal certification in lieu of completing and submitting the New York State minority- and women-owned business enterprise certification application.

1. DMWBD shall approve an applicant as a certified business without requiring that applicant to complete the New York State minority and woman owned business enterprise certification application provided: (i) the applicant demonstrates that it holds a current federal certification pursuant to Title 49 CFR Part 26 or Title 13 CFR Part 124 by submitting a true copy of the certification to DMWBD; (ii) the applicant completes the Supplemental Application;_(iii) the applicant provides a signed authorization for the exchange of information between the DMWBD and the certifying entity for the purpose of determining the applicant’s eligibility for certification; (iv) an owner, a partner or a principal officer that is authorized to act on behalf of the applicant signed and has notarized an attestation that the information submitted in connection with the federal certification is accurate to the best of that person’s knowledge; and (v) the applicant provides proof satisfactory to the DMWBD that the applicant is owned, operated and controlled by women or minority group members. Documentation referenced in section 144.2(c)(1) of this Part may be required to substantiate the claim of membership in a minority group or gender.

2. Notwithstanding anything to the contrary in section 144.10 (1) above, DMWBD reserves the right to (i) conduct an investigation of an applicant (which may include, but not be limited to, conducting a site visit to the applicant’s place of business, and or requesting documentation from the applicant) to verify that the applicant meets all of the eligibility criteria set forth in Executive Law section 314 and section 144.2 of this Part, and (ii) reject or deny certification if DMWBD is not satisfied that the applicant meets all of the eligibility criteria set forth in Executive Law section 314 and section 144.2 of this Part.

3. After verification by the DMWBD that an applicant has satisfied all of the criteria in section 144.10(1)(i)–(v), and 144.10(2) if applicable, such applicant shall become certified as a minority or women-owned business enterprise without completing the New York State minority and woman owned business enterprise certification application.

4. The process described in section 144.4 of this part will apply to Supplemental Applications.

Text of proposed rule and any required statements and analyses may be obtained from:

Thomas P Regan, New York State Department of Economic Development, 30 South Pearl Street, Albany NY 12245, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

STATUTORY AUTHORITY:

Section 314(2-a)[c] of the Executive Law authorizes the Director of the Division of Minority and Women Business Enterprise Development (the "Division") to establish a procedure, rules and regulations, enabling the Division to accept federal certification verification for minority and women-owned business enterprise ("MWBE") applicants in lieu of requiring the applicant to complete the state certification process.

LEGISLATIVE OBJECTIVES:

The rulemaking accords with the public policy objective the Legislature sought to advance because it establishes criteria for acceptance of federal certification standards which will streamline the state MWBE certification process for businesses that have already undergone the certification process under an existing federal certification program and ultimately increase their access to contracting opportunities. It is the public policy of the State to develop reasonable standards for accepting such certification in order to increase certification efficiency, avoid duplication of efforts between state and federal programs and get more businesses certified as soon as possible so that more businesses might access contracting opportunities.

NEEDS AND BENEFITS:

The rule is required under the statute to establish criteria for the acceptance of federal certification verification for minority and women-owned business enterprise applicants in lieu of requiring the applicant to complete the state certification process. The rule has several benefits. First, the rule streamlines the state certification process to enable the Division to certify business enterprises which already have required federal certification without undertaking the entire, lengthy state certification process. Second, the rule necessarily enables certain businesses to access contracting opportunities sooner than they might normally be able to which will benefit these companies as well as the State in terms of potential job growth. Third, accepting applicants with federal certifications on a "fast track" basis will reduce the amount of backlog the program currently has as many pending applications have federal certification(s) and these type of applications can now be processed more quickly.

COSTS:

I. Costs to private regulated parties (the Business applicants): None. The regulation will not impose any additional costs to the business applicants beyond the existing program.

II. Costs to the regulating agency for the implementation and continued administration of the rule: None.

III. Costs to the State government: None. While the Division will have to review and process federally certified applicants in a different manner than other firms, this will not impose any significant costs to New York State as a result of the rule making.

LOCAL GOVERNMENT MANDATES:

None. Local governments are not mandated to participate in the MWBE program.

PAPERWORK:

The rule will require federally certified entities to submit a copy of their original application filed with a federal certifying organization along with a two page Fast Track application/release (developed by the Division). The Fast Track application/release will be completed and notarized by the applicant and the Division reserves the right to conduct an investigation of the applicant. This requirement is not burdensome on applicants since even with the potential of additional informational requests pursuant to an investigation by the Division, the overall demands on the applicant have been greatly reduced and the hours required by the state to process the applications will likely be greatly reduced.

DUPLICATION:

The rule will not duplicate or exceed any other existing Federal or State statute or regulation.

ALTERNATIVES:

The Department rejected the alternative of not promulgating this rule because section 314(2-a)(c) of the Executive Law required its promulgation.

FEDERAL STANDARDS:

The rule does not exceed any Federal standard; this rule works in conjunction with the federal DBE program as outlined in Title 49 Part 26 of the CFR and section 8(a) of the Small Business Act of 1968; see also 13 CFR Part 124.

COMPLIANCE SCHEDULE:

The affected State agency (New York State Department of Economic Development) and the business applicants will be able to achieve compliance with the regulation shortly after it is implemented.

Regulatory Flexibility Analysis

Application to the minority and women business enterprise program is entirely at the discretion of each eligible business enterprise. Neither Executive Law Article 15-A nor the proposed regulations impose an obligation on any local government or business entity to participate in the program. The proposed regulation does not impose any adverse economic impact, reporting, record-keeping, or other compliance requirements on small businesses and/or local governments. In fact, the proposed regulations may have a positive economic impact on small businesses as the changes created in the proposed regulations may increase the number of small businesses certified and able to access contracting opportunities throughout New York State. For clarification purposes, the changes crafted in the proposed regulation do not affect local governments. Because it is evident from the nature of the proposed rule that it will have either no substantive impact, or a positive impact, on small businesses and local governments, no further affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses and local government is not required and one has not been prepared.

Rural Area Flexibility Analysis

The minority and women business enterprise program is a statewide program. There are eligible businesses in rural areas of New York State. However, participation in the program is entirely at the discretion of eligible business enterprises. The program does impose some responsibility on those businesses which participate such as submitting applications and reports. However, the rule will not impose any substantial reporting, record keeping or other compliance requirements on public or private entities in rural areas. Therefore, the regulation will not have a substantial adverse economic impact on rural areas or reporting, record keeping or other compliance requirements on public or private entities in such rural areas. Accordingly, a rural area flexibility analysis is not required and one has not been prepared.

Job Impact Statement

The proposed regulation relates to the minority and women business enterprise (MWBE) Program. The regulation will not have a substantial adverse impact on jobs and employment opportunities. In fact, the proposed regulation, which results from a statutory-based requirement, will have either a positive impact or no impact on job growth throughout the State. A streamlined MWBE certification process for certain companies will enhance and increase these companies’ contracting opportunities in the State. This could invariably lead to more business opportunities for these companies and ultimately job growth for New York state. Because it is evident from the nature of the proposed regulations that it will have either no impact, or a positive impact, on job and employment opportunities, no further affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.