[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
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