FDIC Federal Register Citations

[Federal Register: April 14, 1997 (Volume 62, Number 71)]

[Proposed Rules]

[Page 18059-18062]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr14ap97_dat-23]

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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 361

RIN 3064-AB95

Minority and Women Outreach Program--Contracting; and Individuals

With Disabilities Outreach Program

AGENCY: Federal Deposit Insurance Corporation.

ACTION: Proposed rule.

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SUMMARY: The FDIC proposes for public comment amendments to its

regulations to provide that the FDIC certify the eligibility of

businesses and law firms for the minority and women's contracting

program. The formal certification procedure, similar to what the former

Resolution Trust Corporation had in place, would replace the current

self-certification of minority and women owned businesses and law

firms. This amendment will also establish an outreach program for

individuals with disabilities.

DATES: Comments must be submitted on or before June 13, 1997.

ADDRESSES: Send written comments to Jerry L. Langley, Executive

Secretary, FDIC, 550 17th Street, NW., Washington, DC 20429. Comments

may be hand-delivered to Room 400, 1776 F Street, NW., Washington, DC

20429 on business days between 8:30 a.m. and 5:00 p.m. [FAX number:

(202)898-3838; Internet: comments@fdic.gov]. Comments will be available

for inspection and photocopying at the FDIC's Reading Room, room 7118,

550 17th Street, NW., Washington, DC 20429, between 9:00 a.m. and 4:30

p.m. on business days.

FOR FURTHER INFORMATION CONTACT: Mary A. Terrell, Associate Director,

Office of Diversity and Economic Opportunity, (202) 416-4322; Pamela H.

Peters, Senior Attorney, Office of Diversity and Economic Opportunity,

(202) 416-4325; or Gladys Gallagher, Counsel, Legal Division, (202)

898-3833.

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

Consistent with this proposed rule, the FDIC proposes to modify a

collection of information already approved by the Office of Management

and Budget (OMB), ``Forms Relating to FDIC Outside Counsel Services

Contracting,'' OMB Clearance No. 3064-0122, by adding a new form,

``Minority and Women-Owned Law Firm Certification Form'' and a

supporting documentation requirement. This collection of information

revision has been submitted to OMB for review and approval pursuant to

the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.).

Comments are invited on: (a) Whether the collection of information is

necessary for the proper performance of the FDIC's functions, including

whether the information has practical utility; (b) the accuracy of the

estimates of the burden of the information collection, including the

validity of the methodology and assumptions used; (c) ways to enhance

the quality, utility, and clarity of the information to be collected;

and (d) ways to minimize the burden of the information collection on

respondents, including through the use of automated collection

techniques or other forms of information technology.

Comments should be addressed to the Office of Information and

Regulatory Affairs, OMB, Attention: Desk Officer Alexander Hunt, New

Executive Office Building, Room 3208, Washington, DC 20503, with copies

of such documents sent to Steven F. Hanft, Assistant Executive

Secretary (Regulatory Analysis), FDIC, Room F-400, 550 17th Street,

NW., Washington, DC 20429. OMB is required to make a decision

concerning the collection of information contained in these proposed

regulations between 30 and 60 days after publication of this document

in the Federal Register. Therefore, a comment to OMB is best assured of

having its full effect if OMB receives it within 30 days of

publication. This does not affect the deadline for the public to

comment to the FDIC on the proposed regulation. A copy of a draft

Minority and Women-Owned Law Firm Certification Form may be obtained,

free of charge, by contacting Mary A. Terrell, at the address

identified above.

The regulatory basis for the Minority and Women-Owned Law Firm

[[Page 18060]]

Certification Form is found in Sec. 361.7(a)(2) of this proposed rule.

A law firm that desires to be designated as a minority and/or women-

owned law firm will be required to complete the certification and

submit it to the FDIC's Office of Diversity and Economic Opportunity.

In addition, such a law firm will be required to submit documentation

supporting its minority or women-owned status. The information

collected will be used by the FDIC as part of the certification process

for law firms wishing to participate in the FDIC's minority and women-

owned law firms outreach program.

The estimated annual reporting burden for the collection of

information requirement in this rule is summarized as follows:

Number of Respondents: 400.

Number of Responses per Respondent: 1.

Frequency of Response: Once every two years.

Total Annual Responses: 200

Hours per Response: \1/2\ hour for the certification form and 1\1/

2\ hours to obtain the supporting documents.

Total Annual Burden Hours: 400

As noted above, this PRA notice and request for comment pertains to

an already approved collection of information, ``Forms Relating to FDIC

Outside Counsel Services Contracting'', OMB Clearance No. 3063-0122. On

January 10, 1997, the FDIC published a notice and request for comment

in 62 FR 1455 proposing a different change to the same collection of

information. The earlier notice pertained to the addition to the

collection of information of a Form 1600/05 and a Form 5200/01 in which

law firms, their employees, agents and subcontractors who provide

services for the FDIC make representations and certifications regarding

their integrity, fitness and conflicts of interest required by 12 CFR

Part 366 and authorize the release of information about themselves for

verification purposes. The determination to be made pursuant to the

Minority and Women-Owned Law Firm Certification Form for which the FDIC

is currently requesting comment is unrelated to the determination to be

made pursuant to Forms 1600/05 and 5200/01 for which the earlier

comment was sought.

It is noted that in another collection of information already

approved by OMB, ``Acquisition Services Information Requirements'', OMB

Control No. 364-0072, the FDIC requests information about minority and

women-owned status of businesses that provide the FDIC services other

than legal services. No changes are being proposed in that collection

at this time.

Regulatory Flexibility Act

The Board of Directors hereby certifies that the proposed

regulation does not have a significant economic impact on a substantial

number of small entities within the meaning of the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.). This proposed regulation

affects only those business and legal contractors who wish to provide

services to the FDIC under its minority-and women-owned businesses

contracting program.

The proposed formal certification program will require businesses

and law firms who wish to participate in the program to complete an

application and submit those documents and records which they maintain

during the normal course of business. Such efforts will not require

trained personnel or special equipment and should not have significant

economic impact on participating businesses and law firms. Therefore,

the provisions of the Act relating to an initial and final regulatory

analysis (5 U.S.C. 603 and 604) do not apply here.

Background

1. Certification of Minority- and Women-Owned Businesses and Law Firms

Section 1216(c) of the Financial Institutions Reform, Recovery, and

Enforcement Act of 1989 (FIRREA), Pub. L. 101-73, 103 Stat. 183,

required that the Federal Deposit Insurance Corporation (FDIC) and the

Resolution Trust Corporation (RTC) prescribe regulations to establish

and oversee a minority outreach program to ensure inclusion, to the

maximum extent possible, of minorities and women, and entities owned by

minorities and women, including financial institutions, investment

banking firms, underwriters, accountants, and providers of legal

services, in all contracts entered into by the agency. According to

FIRREA, minorities are defined as Asian American, Black American,

Hispanic American and Native American.

The FDIC's Minority and Women Outreach Program-Contracting policy

was published in the Federal Register at 57 FR 15004 on April 24, 1992.

The FDIC currently requires businesses and law firms to either ``self-

certify'' their minority or women ownership status, or submit a valid

minority- and women-owned business (MWOB) certification received from a

federal agency, designated state or authorized local agency. Based on

this ``self-certification'' of their ownership status, MWOBs and MWOLFs

have the opportunity to participate in the FDIC's minority and women

contracting program.

On October 27, 1995, pursuant to the requirements of section 6 of

the RTC Completion Act, Pub. L. 103-204 (December 17, 1993), the FDIC/

RTC Transition Task Force (Transition Task Force) examined and

presented Best Practices and Management Reform Recommendations (Best

Practice Recommendations) on the operational differences and RTC

management reforms related to minority and women's programs. The

Transition Task Force examined the FDIC's and the RTC's certification

process for MWOBs and MWOLFs, and recommended that the FDIC adopt a

MWOB/MWOLF certification program similar to the RTC's which included a

detailed document review and, when appropriate, on-site visits to

verify a firm's MWOB/MWOLF status.

By replacing the ``self-certification'' program with a formal

program, the FDIC is exercising its discretion and taking the necessary

action to ensure that the minority and women contracting program

benefits those for whom it has been designed.

The proposed amendment to the existing regulation is broad by

design and is intended to announce that the FDIC has adopted a formal

certification program. Detailed certification procedures will be

incorporated into an FDIC directive that will further delineate the

functions of various divisions and offices in the certification

process. These procedures will require that MWOBs and MWOLFs complete

the required business or legal registration/application package. MWOBs

and MWOLFs will also be required to submit documentation, including but

not limited to, articles of incorporation, bylaws, partnership and/or

joint venture agreements, organizational charts, and lists of boards of

directors showing minority and women ownership designations, to the

ODEO.

In lieu of the accompanying documents, MWOBs and MWOLFs may submit

current formal certifications from other federal agencies. However, the

FDIC shall at all times reserve the right to request any information

that is deemed necessary to certify the status of a firm.

Upon receipt of these documents, the ODEO will review the documents

submitted. When appropriate, the ODEO may conduct on-site verifications

based upon a contract award, legal engagement, or accumulated fees of

[[Page 18061]]

$50,000 or greater. Finally, the certification process and directive

will also include an appeals process for those firms who have been

denied MWOB/MWOLF status.

All businesses that have ``self-certified'' their MWOB status shall

submit the required certification documents prior to responding to

Requests for Proposals or during the contracting process. Law firms

that have previously ``self-certified'' their MWOLF status shall submit

the required certification documents at the time they apply for, or

renew, their FDIC Legal Services Agreement. Certification for law firms

and businesses will remain valid for a two-year period.

The establishment of the MWOB and MWOLF certification program will

help foster and preserve the integrity of the FDIC's business and legal

contracting activities. Additionally, the formal certification program

will also serve to discourage fraudulent representations by businesses

and law firms seeking to provide goods or services, or enter into

contracts to provide goods or services, including legal services, to

the FDIC in all of its capacities. The FDIC invites comment on whether

the proposed rule, or some other alterative, would better achieve these

objectives.

2. Individuals With Disabilities Outreach Program

Under section 303 of the Riegle Community Development and

Regulatory Improvement Act of 1994 (RCDRIA), 12 U.S.C. 4803, each

federal banking agency is required to streamline and modify its

regulations and policies in order to improve efficiency, reduce

unnecessary costs, remove inconsistencies and outmoded and duplicative

requirements, and to work jointly with other federal banking agencies

to make uniform all regulations implementing common statutory or

supervisory policies.

In response to the RCDRIA, the FDIC and the other federal banking

agencies are working to ensure that the regulations mandated by FIRREA

concerning minority and women outreach programs are uniform and

consistent. The Office of Thrift Supervision (OTS) and the Office of

the Comptroller of the Currency (OCC) have established outreach

components to their contracting programs that include individuals with

disabilities. The FDIC believes that establishing an outreach program

for firms owned by individuals with disabilities complies with

applicable law and also satisfies the RCDRIA uniformity requirements

even though the FDIC outreach program for firms owned by individuals

with disabilities is not identical to those established by the OTS and

OCC.

This subpart does not treat individuals with disabilities as

minorities, since FIRREA defines minorities as Asian American, Black

American, Hispanic American, and Native American. However, the FDIC has

authority pursuant to Section 9 (Third) of the Federal Deposit

Insurance Act to establish an outreach program for firms owned and

controlled by individuals with disabilities. The outreach program for

individuals with disabilities is set forth in subpart B of part 361.

List of Subjects in 12 CFR Part 361

Government contracts, Individuals with disabilities, Lawyers, Legal

services, Minority businesses, Reporting and recordkeeping

requirements, Women.

For the reasons set out in the preamble, the Board of Directors of

the Federal Deposit Insurance Corporation proposes to amend part 361 of

chapter III of title 12 of the Code of Federal Regulations as follows:

PART 361--MINORITY AND WOMEN OUTREACH PROGRAM-CONTRACTING AND

INDIVIDUALS WITH DISABILITIES OUTREACH PROGRAM

1. Part 361 is amended by revising the part heading as set forth

above.

2. The authority citation for part 361 is removed.

2a. Part 361 is amended by designating Secs. 361.1 through 361.11

as subpart A and adding the subpart heading to read as follows:

Subpart A--Minority and Women Outreach Program--Contracting

3. The authority citation for subpart A is added to read as

follows:

Authority: 12 U.S.C. 1833e.

4. Section 361.7 is revised to read as follows:

Sec. 361.7 Minority and women owned business (MWOB) and minority and

women owned law firms (MWOLF) certification.

(a)(1) Each firm requesting minority and/or women-owned business or

law firm (MWOB/MWOLF) status must undergo a formal certification

process to be determined and conducted by the FDIC.

(2) Each firm requesting designation as a minority and/or women-

owned business or law firm must submit an application and requested

certification documents, in accordance with procedures established by

the FDIC, which demonstrates that the firm meets the criteria

established in Sec. 361.3(a). Upon receipt of a completed application,

the FDIC will determine the eligibility of the firm for MWOB/MWOLF

status.

(3) In lieu of the certification documents requested in paragraph

(a)(2) of this section, the FDIC may accept a current federal agency's

certification of a firm as a MWOB/MWOLF. However, the FDIC shall at all

times reserve the right to request any information necessary to certify

the status of a firm.

(b) All matters relating to MWOB/MWOLF status will be addressed by

the FDIC Office of Diversity and Economic Opportunity, located at 801

17th Street, N.W., Washington, D.C. 20434.

5. A new subpart B, consisting of Sec. 361.20, is added to part 361

to read as follows:

Subpart B--Individuals With Disabilities Outreach Program

Sec.

361.20 Outreach program for individuals with disabilities.

Subpart B--Individuals With Disabilities Outreach Program

Authority: 12 U.S.C. 1819(Tenth).

Sec. 361.20 Outreach program for individuals with disabilities.

(a) Purpose. This program has been established to ensure that

persons with disabilities and firms owned by persons with disabilities

are afforded the opportunity to participate in the FDIC's outreach

activities. For purposes of this subpart, ``outreach'' shall mean those

information and training activities designed to make firms aware of the

FDIC's contracting opportunities.

(b) Definition of individual with disabilities. In administering

this subpart, the FDIC may, in its sole discretion, use the definition

of the term individual with a disability as found in the Rehabilitation

Act of 1973, 29 U.S.C. 701 et seq., for outreach purposes. The FDIC is

not subject to the Rehabilitation Act and its amendments, and merely

looks to this definition in the Rehabilitation Act, because the

definition is commonly understood and applied.

(c) Outreach activities. The outreach activities that the FDIC may

undertake under this subpart include:

(1) The identification of business entities owned by individuals

with disabilities who can provide goods and services to the FDIC;

(2) Distribution of information concerning third party contracting

[[Page 18062]]

opportunities directly and through trade associations representing

business entities owned by individuals with disabilities;

(3) Participation in conventions, seminars and professional

meetings attended predominately by individuals with disabilities; and

(4) Conducting seminars, meetings, workshops and other various

activities to promote the inclusion of individuals with disabilities

and the firms they own.

By Order of the Board of Directors.

Dated at Washington, D.C. this 25th day of March, 1997.

Federal Deposit Insurance Corporation.

Robert E. Feldman,

Deputy Executive Secretary.

[FR Doc. 97-9585 Filed 4-11-97; 8:45 am]

BILLING CODE 6714-01-P