1 1 2 3 4 5 6 7 8 **************************************************

9 MEETING MINUTES OF THE 10 PUBLIC HEARING ON EPA'S PROPOSED DBE RULE 11 HELD ON NOVEMBER 18, 2003 12 *************************************************

13 14 15 16 17 18 19 20 21 22 REPORTER BY: ALMA S. RODRIGUEZ, CSR 23 24 25 2 1 ( Beginning of proceedings.)

2 MS. BRADFORD: Good morning to you 3 all again. I hope y'all can hear me okay. But my 4 name is Debra Bradford. I am the regional 5 coordinator here for the Environmental Protection 6 Agency. And I thank you all for coming to this 7 public hearing.

8 And we're going to be addressing 9 some of the changes to the DB program that EPA 10 has. And we'd really welcome your input and 11 comments concerning the rules.

12 I just want to give you some 13 logistics before we get started and introduce you 14 to the panel from our D. C. office out of  EPA 15 out of D. C.

16 I think earlier I told you all, you 17 know, if you wanted to get something, you know, go 18 to 5 or B1. The cafeteria's on 5, and a little 19 cafeteria on B1. Also, the restroom, you go out 20 these doors that you came in, you're going to make 21 a  a right and go down that hallway. And you 22 need the access code, which is 26351 to get in and 23 out on this floor.

24 Also, the lead administrator here 25 Mary Richard Green, and she could not be here, and 3 1 I am in the management division.

2 Okay. And we just did a preliminary 3 pool that we just finished our fourth quarter 4 review of the MBE/ WBE activity reported by our 5 grant recipients, and I just wanted to give y'all 6 some numbers so you'll know that this is a real,

7 you know, vital program. And that there are money 8 out there and there are requirements that are put 9 into each of the grants that we issue to our 10 recipients. And they do have to do a good faith 11 effort and requirements to work with minority and 12 women owned businesses as they go out and do 13 procurement.

14 For Region 6 for FY 2003, our 15 recipients reported that they did over 16 $ 260,000,000 in procurement activities. And they 17 said that for MBE/ WBE, they did $ 42,000,000 to 18 MBE. And then for WBE, over $ 21,000,000.

19 So the funds are out there.

20 $ 250,000,000 is a lot of money that  you know,

21 we really encourage the minority and women owned 22 businesses to work with the state recipients or 23 our grant recipients on doing business with their 24 organization.

25 With me at the panel, I have Dave 4 1 Sutton, who is the deputy director for the Office 2 of Small and Disadvantaged Businesses Utilization 3 out of D. C.  the EPA headquarters in D. C. With 4 him is Mark Gordon, who's the attorney for the 5 Office of Small and Disadvantaged Businesses. And 6 they are the ones that will be conducting this 7 public hearing.

8 If you have any questions or 9 concerns, please, give me a call. You know, I'm 10 really  I'm here to assist. And what with that 11 I'm going to turn it over to Dave.

12 MR. SUTTON: Thanks very much,

13 Debora.

14 As Debora mentioned, I'm Dave Sutton 15 and I'm the deputy director of EPA's Office of 16 Small and Disadvantaged Businesses Utilization.

17 Jeannette Brown is our director, but 18 unfortunately, Jeannette cannot be here today, so 19 you got me.

20 We're doing a number of public 21 hearings on this rule around the country.

22 And in particular, Indian country.

23 Because, as we go through the rule today, you'll 24 find that there are going to be a number of 25 changes in this program. And we're proposing a 5 1 number of changes to this program that will have a 2 significant impact on the way we do business with 3 tribal governments.

4 First of all, I just want to welcome 5 you to this hearing. I want you to sit back and 6 listen to our summary of what this new rule making 7 is all about. We want to get your input, if you 8 have comments, if you have questions. I'm just 9 going to ask that you come to the mic, so that we 10 can make sure we get your questions and your 11 comments accurately.

12 The whole purpose of doing this is 13 to get your input. So to make sure we get 14 everything, when you come to the mic, give your 15 name, give your organization, and then proceed 16 with your questions and comments.

17 Okay. Before we get into the rule,

18 I'd like to talk a little bit about our program.

19 Debora gave you some statistics on how Region 6 is 20  which I think is pretty good, Debora. I'm 21 trying to do the math. It's maybe what? Thirty 22 or 40 percent? I mean, it's pretty good. I think 23 that was about $ 40,000,000 out of $ 200 something 24 million that went to MBEs and WBEs.

25 But for those of you who might may 6 1 not know  you may the question, What is BDE 2 Procurement Program?

3 Basically, it's a golden program for 4 the participation of disadvantaged businesses in 5 procurements funded by EPA assistance agreements.

6 Now, that's a mouth full. Let me 7 see if I can break that down in plain English for 8 you. I'll give you an example. Let's say that 9 EPA gives a grant to the State of Texas to 10 implement some environmental program. Okay.

11 What our DBE program does is give 12 the State of Texas goals for the participation of 13 minority owned businesses and women owned business 14 in any procurement that Texas does with EPA funds,

15 okay.

16 And those are the numbers Debora was 17 giving; not just for Texas, but for all of the

18 all the states in Region 6  all of the  yeah.

19 All of the states in Region 6.

20 Well, you might ask, " Well, I hear 21 you talk about a goal program, what are the 22 goals?"

23 EPA has two national goals for the 24 participation of minority and women owned 25 businesses in this grant program: a 10 percent 7 1 goal, and an 8 percent goal.

2 The 10 percent goal applies to any 3 research done under the Clean Air Amendment of 4 1990. The 8 percent goal is for everything else.

5 Needless to say, most of our grant 6 programs fall in the 8 percent category. How many 7 of you have heard of the Supreme Court decision in 8 Adarand versus Pena?

9 Good. That's why we're doing this 10 rule. We're doing this rule to make sure our 11 program meets the strict scrutiny of the Adarand 12 decision.

13 Before the Adarand decision, we put 14 the 8 percent goal of the 10 percent goal, as 15 appropriate, in every EPA grant, okay  because 16 these were our national goals.

17 Well, then  when the Adarand 18 decision came about and mandated that these 19 programs being narrowly tailored meeting 20 compelling governmental interests, the goals in 21 each grant now have to be based on the 22 availability of minority and women owned firms 23 within their requisite geographical area.

24 May not be  8 percent may not be 25 appropriate. You know, if you're in an area like 8 1 California with a lot of minority owned 2 businesses, it's somewhere around 36 percent, then 3 the 8 percent of the 10 percent would be too low.

4 If you're in an area like Vermont 5 where you have a 1 percent minority owned business 6 availability, the goals are too low  or too 7 high  excuse me.

8 So what we've had to do now is to 9 negotiate goals with all of our major grant 10 recipients.

11 At this point, we've negotiated 12 goals with all of the states. That's one of the 13 jobs that Debora has as the regional MBE/ WBE 14 coordinator for Region 6. She has to actually 15 negotiate those goals.

16 So now what happens is that in every 17 grant the goals, you know, for each state or 18 whatever, a grant recipient can either negotiate 19 their own goals with EPA, or they can choose to 20 use the same goals if the bidding practices are 21 pretty much the same.

22 Okay. I've talked about this  why 23 we're doing the rule making, and we're doing it to 24 make sure we meet the strict scrutiny of the 25 Adarand decision. 9 1 Prior to promulgation of this rule,

2 we, basically, run this program with a number of 3 guidance documents, and, basically, giving 4 instructions to our MBE/ WBE coordinator, and 5 giving instructions to our grant recipients now to 6 make sure our program doesn't get challenged and 7 make sure we're abiding by the rule.

8 Okay. What are the key elements?

9 There are 11 key elements of this proposed rule.

10 And I'm just going to talk about them briefly,

11 then Mark Gordon will give you some more 12 specifics.

13 And after Mark finishes, we invite 14 you to come to the mic and either give us comments 15 or ask any questions that you have on any of the 16 areas. I'm just going to run through these very 17 briefly and give you an overview of the major 18 changes.

19 The first major change is going to 20 be a name change, because right now we call this 21 an MBE/ WBE program. Under the proposed rule it's 22 called a DBE program, Disadvantaged Business 23 Enterprise program, which would include 24 minorities, women, and other groups, including 25 groups that aren't necessarily, you know, 10 1 organizations that are lead by members of what are 2 considered minority groups. It would just depends 3 on the facts and circumstances in each case.

4 But this will be a program for 5 disadvantaged businesses, not just minority owned 6 businesses and women owned business.

7 Certification will now be required 8 under the proposed rule. As our program stands 9 right now, if you come forward and say, " Look at 10 me, I'm a minority owned business." And if you 11 look like one, we consider you one. If you come 12 forward and say, " I'm a woman owned business."

13 And you look like a woman and you own a business,

14 and we consider you a woman owned business.

15 So one of the changes will be that 16 both minority and women owned businesses will 17 have to be certified.

18 We'll go into a lot more detail on 19 this. We're going to accept other certifications.

20 You know, if you are registered by SBA or DOT and 21 certain certifications we're going to accept.

22 Mark will talk to you a little bit more about 23 that.

24 The rule is also going to address 25 the six good faith efforts. And those are efforts 11 1 the grant recipients and prime contractors have to 2 make to make sure they try to solicit 3 disadvantaged businesses. It deals with, you 4 know, vendors lists, doing outreach, and keeping 5 records.

6 These are the efforts of the grant 7 recipient and the prime contractors have to take 8 to show us that they make efforts to get 9 disadvantaged businesses.

10 There are a number of contract 11 administration provisions. One, for example,

12 deals with prime contractors deciding not to use a 13 DBE, they have to make an effort.

14 There are a number of contract 15 administration provisions that Mark will talk 16 about.

17 Okay. Determining fair share goals.

18 I gave you an example of Vermont and California.

19 What's going to be key here  we've with already 20 done fair share negotiations with all our 50 21 states, but we have not done  we haven't 22 established fair share goals with what we call 23 insular areas  which are areas like Puerto Rico,

24 Guam, Virgin Islands  nor with Indian tribes.

25 One of the key changes in this rule 12 1 is that we're going to be bringing the tribes into 2 full compliance with our program. That means that 3 the tribes will have to negotiate goals, the 4 tribes will have to report their accomplishments.

5 And it won't be that we'll just consider 6 everything going to tribes as 100 percent going to 7 minorities.

8 That has been a problem with our 9 program in the past. As our program is 10 implemented right now, any grants going to Indian 11 tribes or to groups in those insular areas

12 like, Puerto Rico and Guam and Virgin Islands

13 are considered to be going 100 percent to 14 minorities. And we're counting all of those 15 dollars as part of our program implementation, and 16 it's not right.

17 I can give you an example. In one 18 of our regions, the regional coordinator, Debora's 19 counterpart, called me and said, " You know, Dave,

20 it's really not fair. We've given a grant to this 21 tribe  I'll let the tribe remain nameless  to 22 implement a grant in our program. The tribe 23 awarded a $ 5,000,000 contract to a 24 non minority owned, non women owned business, and 25 we count it as 100 percent going to minorities." 13 1 That's wasn't right. So that's one 2 of the main reasons that we're having a number of 3 these proposals with the Indian country because 4 based on this new proposal, we're going to be 5 treating them completely different than the way 6 they've been treated in the past.

7 And the reason our director,

8 Jeannette Brown, is not here today, is that she's 9 in Syracuse, New York having a Tribal hearing.

10 In fact, in addition to these public 11 hearings, we're having nine hearings focused 12 primarily on Indian tribes. Primarily because of 13 the changes in our program that will affect them.

14 We will address the mission of fair 15 share goals, how they're negotiated with the 16 regional director and how they're submitted. We 17 will also address race and gender conscious 18 efforts.

19 These are efforts that EPA can 20 take  if for some reason a grant recipient is 21 having a difficult time meeting the goals by doing 22 the six good faith efforts, there are provisions 23 in the rule that we can implement race and gender 24 specific efforts, and Mark will talk about those.

25 Exemptions. One of the key areas is 14 1 that sometimes EPA awards a number of smaller 2 grants. And when we had our draft rule, we got a 3 lot of input, both from the internal EPA and 4 external EPA, that it's not practical for somebody 5 receiving a small grant to have to go through all 6 of this. So we've come up with an exemption 7 level, and Mark will talk about that.

8 I've already hit on the treatment of 9 tribes and insular areas.

10 Record keeping and reporting.

11 Basically, what happens is grant recipients report 12 their actual accomplishments to us, either 13 quarterly or annually. States reporter quarterly 14 and nonprofit report annually. That's done on a 15 form 5700 52A. And also they're going to be 16 record keeping requirements that relate to the six 17 good faith efforts.

18 And finally, the last area that is a 19 change will be waivers. What that means is that 20 our office director can grant waivers to portions 21 of these requirements based on the facts and 22 circumstances in each case.

23 Okay. So that's  in a nutshell,

24 that's an overview of the changes. I hope I have 25 stimulated your thoughts process, and now I'm 15 1 going to ask Mark to go into a little more detail 2 on the specifics in these changes. After Mark 3 finishes, I invite you to come to the mic with any 4 questions or comments, or maybe you just want to 5 give input or you may have a question. We welcome 6 everything you have to say.

7 When you come up, make sure you give 8 us your name and your organization and then 9 proceed with your comment or question.

10 Thank you.

11 MR. GORDON: Good morning. I'm Mark 12 Gordon and I'm not as agile as Dave. I didn't get 13 here until 10: 00 last night because of the storm,

14 so I'm kind of tired. If you don't mind I'm just 15 going to sit in my chair, although, Dave was 16 delayed also, he's younger than me.

17 Anyway, I recognize in this audience 18 some faces that I've seen before. I was here a 19 few years ago at a hearing that we had on our 20 proposed draft of this rule. And this rule 21 proposal now is as a result of a number of 22 comments that we've gotten at hearings all across 23 the country including the hearing that we held 24 here in Dallas.

25 Can I see by a show of hands the 16 1 companies that are represented here by folks, how 2 many of you are already certified by DOT or SBA?

3 Okay. So for those of you  if 4 you're a U. S. citizen, you're  we will accept,

5 automatically, any certification that you already 6 have by DOT or SBA. So you don't need to worry 7 about going through a whole process just for EPA.

8 Are any of you certified  and,

9 Debora, correct me, I don't remember the exact 10 names of these organizations, but I believe there 11 is a Houston minority business counsel or 12 something like that, and there's also one here in 13 Dallas  are any of you certified by any of 14 those?

15 Okay. If you're only certified by 16 those types of entities, we will have to look at 17 their requirements to make sure that they comply 18 with our requirements. We know that DOT and SBA 19 will automatically meet that test. I can't tell 20 you yet since we haven't reviewed the requirements 21 that these locals  what is the name  what is 22 the exact name?

23 AUDIENCE MEMBER: Texas Regional 24 Certification Agency.

25 AUDIENCE MEMBER: What about the 17 1 capital? What about Austin?

2 MR. GORDON: There are a whole 3 bunch

4 AUDIENCE MEMBER: I'm Tom Jordan.

5 I'm with the City of Fort Worth, Contract 6 Compliance Specialist. The only agencies that are 7 normally accepted  that we accept and the 8 federal agencies  the airports  is the North 9 Central Texas Region Certification Agency. And 10 that's it.

11 AUDIENCE MEMBER: North Central or 12 South Central Texas

13 AUDIENCE MEMBER: They're all under 14 the Texas uniform

15 AUDIENCE MEMBER: Is that it right 16 there?

17 AUDIENCE MEMBER: Right.

18 AUDIENCE MEMBER: That's what you're 19 talking about? Because it get's awfully 20 confusing. When you say " DOT," do you mean Texas 21 DOT?

22 AUDIENCE MEMBER: This is  they're 23 all certified under the Texas Uniform 24 Certification Program. So if you're certified 25 under North Central Texas, South Central Texas, 18 1 even some of the cities, City of Houston  if 2 they do a DBE certification, only a DBE 3 certification, not HUB, but DBE certification, it 4 goes into the state data base or and that's the 5 way it

6 AUDIENCE MEMBER: And it gets 7 awfully confusing. I've been in business almost 8 12 years, whether I get HUB, DB, SBA, SB this and 9 that, and it gets so very confusing, you know.

10 And Texas DOT, does not do inspections to see if 11 you do run the company or not.

12 AUDIENCE MEMBER: Well, they're 13 supposed to.

14 MS. RAMSEY: Could I ask both of you 15 to state your names?

16 AUDIENCE MEMBER: I'm Cathy with 17 Desert Shield International, Inc.

18 AUDIENCE MEMBER: I'm Tom Jordan 19 with the City of Fort Worth, Contract Compliance 20 Specialist.

21 MR. SUTTON: Okay. And let me 22 remind you, when you want to speak, please use the 23 mic because we want to make sure we know who's 24 making the comment and asking the questions.

25 AUDIENCE MEMBER: Sorry. It just 19 1 gets awfully confusing. It really does.

2 MR. GORDON: Well, again, for those 3 of you that are certified by SBA, you will not 4 have to be certified by EPA again. If you're 5 certified by DOT, if you're a U. S. citizen, you 6 will not have to be certified again by EPA.

7 Now, if any of you are wondering 8 about why that is, under SBA's requirements, you 9 have to be a U. S. citizen in order to get 10 certified by SBA. Under DOT requirements, you do 11 not.

12 You have to be a legally admitted

13 permanent residence, and that's been somewhat 14 controversial in some parts of the country, but 15 given our resources and our close ties to SBA 16 requirements under our own statutes, the proposal 17 as it stands now will only recognize DOT 18 certifications for U. S. citizen owned companies.

19 Well, I think Dave gave a very good 20 introduction to this. I'll go into some more 21 details at the risk of repeating what he said.

22 We are changing the name. The term 23 DB  we have a question already?

24 AUDIENCE MEMBER: Mary Necessary,

25 and I just wanted to make sure I understood you 20 1 correctly. If you would look at other 2 certifications if they're similar to the SBA or 3 the North Central Texas Regional Certification 4 Agency, if they also required that you're a U. S.

5 citizen, would you also consider that 6 certification?

7 MR. GORDON: We will accept other 8 certifications on an individual  on a 9 case by case  not an individual company basis,

10 but an individual examination of that 11 certification, so that when the first time a 12 company comes in and says, We're certified by

13 let's say, North Central Texas, then we would have 14 to look at that certification to make sure that 15 that complies with our requirements.

16 And once we determine that it does,

17 and everybody else who came in with that, we would 18 accept that right away. But we have to look at 19 each one of these because there's a lot of other 20 certifications. And we're not certain that all 21 these meet our requirements without looking at 22 them; not on an individual company basis, but on a 23 case by case basis of the certification entity 24 itself.

25 AUDIENCE MEMBER: I want to say 21 1 something about the North Central Texas 2 certification. There are two types of 3 certifications that the North Central does and 4 they're based on  if you are applying for a DBE 5 certification or a M/ WBE certification, they do 6 both. The difference is if you submit your 7 personal net worth statement and approved, then 8 you will get a DBE certification.

9 If you don't submit that form, you 10 cannot be considered a DBE. You will receive a 11 certificate as certified by the North Central 12 Texas, but it will only be for an M/ WBE 13 certification.

14 So that's very important. If you 15 have your certification certificate, look at it to 16 see if it says DBE or M/ WBE. Because if it's 17 M/ WBE, you have not met all of the federal 18 requirements, and that is the personal net worth 19 statement that is required.

20 MR. GORDON: Okay. Are there any 21 other questions relating to this issue?

22 AUDIENCE MEMBER: Yes, I'm Cathy,

23 Desert Shield International. And I'm with the 24 South Texas Regional, and I was with HUB, and I'm 25 with Austin, which also was with a Part 26 on 22 1 their DB certification, but they handed it over to 2 the South Texas Central Certification Agency.

3 When you say " SBA," though, do you 4 mean 8A? Or when you say " SBA," do you know that 5 you can go to SBA's website and become 6 self certified as a woman owned company through 7 the internet. I've had Bowing Company, Lockhead 8 Martin say, Well, if you are not certified by SBA,

9 we can't do business with you.

10 And I thought SBA  I know who SBA 11 is, but I was thinking, Do I need to become 8A 12 certified with them?

13 MR. SUTTON: No. In terms of

14 AUDIENCE MEMBER: I was told it was 15 self certification through the internet.

16 MR. SUTTON: Yeah. In terms of SBA 17 certification, the only certification that SBA 18 does is for 8A, SDB, and HUB. SBA does not 19 certify women owned small businesses. It's still 20 a self certification program. What Mark is saying 21 is if you've already met the 8A certification by 22 SBA or the SDB, then you've met our requirements.

23 AUDIENCE MEMBER: Not HUB?

24 MR. SUTTON: No. Not HUB. That's 25 based on certain census tracks and employment and 23 1 there's no net worth for HUB.

2 AUDIENCE MEMBER: And our belief

3 or our understanding is that South Texas and the 4 North Texas that does conform to the regulations 5 with the SBA.

6 AUDIENCE MEMBER: So in order to be 7 part of the DE program with the EPA, we have to go 8 further with SBA?

9 MR. SUTTON: Not necessarily SBA,

10 but you would either have to have a DOT 11 certification, an SBA certification, or some other 12 entity that meets our requirements.

13 And, Mark, you may want to tell her 14 what our requirements are in terms of net worth 15 and socially and economically disadvantaged. I 16 could do it, but I'll let Mark do it.

17 MR. GORDON: Okay. Well, I'm skip 18 to that right now.

19 Well, under the proposed rule, you 20 would first have to try to get certified by DOT or 21 SBA or some other certifying entity before you 22 could come to EPA, so we would not only be a last 23 resort situation to meet our requirements. So 24 that's the first thing.

25 You would  we have requirements 24 1 that you have to have a net worth less than 2 $ 750,000 in order to be eligible. And if you have 3 a net worth greater than or equal to $ 750,000,

4 then you would be precluded from continued 5 eligibility.

6 So the $ 750,000 level is both for 7 initial eligibility and for continued eligibility.

8 MR. SUTTON: And one other thing is 9 the $ 750,000 excludes your interest in the 10 business and in your personal residence. Those 11 come off the table. It's what's left.

12 AUDIENCE MEMBER: If you go to the 13 CCR registration, you can see my net worth for 14 three years, which is  Debora, if you're here,

15 you know me. I have a contract with the United 16 States Government, and that's general services 17 administration, and they've accepted me as a WBE 18 and a DBE, as a small woman owned business. And 19 that's a federal agency, as well.

20 MR SUTTON: Okay.

21 MR. GORDON: Ma'am, would you care 22 to give us your last name. I think you've only 23 give us your first name.

24 AUDIENCE MEMBER: Chriske. Cathy 25 Chriske, C H R I S K E. 25 1 MR. GORDON: Okay. Thank you.

2 We have a court reporter here and so 3 just so the record shows.

4 MR SUTTON: I'd just like to make 5 one comment, Mark. I think one thing I want to 6 make sure everyone understands is to participate 7 in this program, you have to be a DBE, a 8 disadvantaged enterprise.

9 Now, you can be a woman owned 10 business and not be disadvantaged. And that's the 11 main reason that we're having this certification 12 requirement. You have to be a disadvantaged 13 business enterprise.

14 MR. GORDON: Right now  this is 15 just a proposed rule. Right now, none of these 16 requirements apply. Let's be very clear about 17 that. We don't require anybody to be certified 18 right now. So if you're sitting in the audience 19 and you're not certified, you don't have to go out 20 and get certified tomorrow.

21 Once this rule becomes effective,

22 once it's promulgated and in final form  if it's 23 promulgated in as the proposal reads, you would 24 have to get certified. But right now, you don't.

25 We accept  in case any of you were 26 1 wondering, Well, I have a certification; I'm a 2 minority owned business and I have a certification 3 from North Central Texas, South Central Texas, we 4 accept those.

5 We currently don't have anything 6 that requires women owned businesses to be 7 certified. And to be very frank about it, I think 8 the reason for that came out of a number of 9 hearings that we held across the country a few 10 years ago.

11 Some of regions we were at, people 12 were up in arms because we were going to be 13 requiring minority owned businesses to be 14 certified and not women own businesses to be 15 certified. Because that was part of the initial 16 draft, but we changed that in response to the 17 comments that we got from the audience.

18 So, please, just understand, we do 19 listen to people's comments. And with that note,

20 let me go on

21 AUDIENCE MEMBER: I'm Patricia 22 Loving with the Texas Water Development Board.

23 The question I have for you, Mark, is: When 24 you're saying that EPA is going to be looking at 25 the certifications to see if they're valid or not, 27 1 in reality, who's is really going to be looking at 2 and determining what North Central Texas has is 3 correct or not? Is it going down to the state 4 level and we're going to have to assume that 5 responsibility?

6 MR. GORDON: Under the current 7 proposal, it would be EPA headquarters that would 8 have to do that.

9 AUDIENCE MEMBER: So we won't be 10 able to then at the state, because we do accept 11 self certifications right now from people, we 12 would not be able to count those people until 13 everything has gone through EPA headquarters or 14 EPA region.

15 MR GORDON: You won't be able to 16 count anybody who's self certified.

17 AUDIENCE MEMBER: Well, no. But I 18 mean, once  if they're saying they're certified 19 by North Central and we're accepting that now.

20 Does that mean that we can no longer count them 21 until they either get SBA or some kind of 22 certification or EPA says that North Central 23 certification is correct?

24 MR. GORDON: No. Now you can keep 25 counting them. 28 1 AUDIENCE MEMBER: I know, but I'm 2 talking about the new rules.

3 MR. GORDON: No. You wouldn't be 4 able to count anybody unless we had determined 5 that they met our requirements.

6 AUDIENCE MEMBER: Okay. It's really 7 feeling to me that it's becoming a bureaucratic 8 kind of thing right here, so that's why I just got 9 a little concerned about that.

10 MR. GORDON: Well, I think it would 11 be very helpful and we'll be talking, I'm sure, to 12 our regional coordinators, for us to get a listing 13 from them of all the different certifying entities 14 in their region, because as far as I know, anyway,

15 we don't have such a list at EPA headquarters.

16 I've never seen one if it exists.

17 I am aware of a large number of 18 certifying entities in this region in particular 19 and a few other regions, but I don't know all 20 their names. We have looked at the state's 21 certifications to see if they comply with our 22 requirements, but I  we didn't have a full list 23 so we haven't looked them over  the non state 24 agencies.

25 And by the way, I believe that there 29 1 are also local governments that certify people.

2 Particularly in Florida, I'm aware of.

3 MR. SUTTON: I think the key is 4 going to be in any certification done by anybody 5 else, as long as it meets our criteria, which is 6 the $ 750,000 net worth and the social or economic 7 disadvantage will be accepted.

8 AUDIENCE MEMBER: But who  is EPA 9 going to tell me that it's okay? That we 10 can ( indiscernable)

11 MR. SUTTON: EPA will be doing the 12 certifications.

13 AUDIENCE MEMBER: Can we show you 14 our tax documents that we are not doing

15 MR. SUTTON: We don't have a 16 process, yet. This is I proposed rule. The 17 earliest that this rule will become final after we 18 get all your comments, finish our public hearings,

19 evaluate the comments, get them into the rule,

20 we're talking at least two years from now.

21 So we don't have a process yet in 22 terms of how we'll make the evaluations, but 23 that's something we would have to do.

24 AUDIENCE MEMBER: I'm Debora 25 Bradford, the regional small disadvantaged 30 1 coordinator for EPA in Dallas.

2 Are you saying that all the 3 certification agencies that are in the state, that 4 we're going to forward them to the EPA 5 headquarters, you all are going to evaluate their 6 certification process, and then determine if they 7 meet our requirements? If they meet our 8 requirements, we're going to post it and say, If 9 you've been certified by any of these programs,

10 and then if they don't meet, then they're going 11 have to come to EPA headquarters and get a 12 certification to participate in the EPA programs?

13 MR. GORDON: Okay. I don't think 14 we've made a final decision about who is going to 15 be doing all the certifications. As it stands 16 now, EPA  we are envisioning that EPA will be 17 making all these decisions, but I think it would 18 be a good idea, Debora  I'm going to ask you to 19 do some work  to get a list of all of the 20 different certifying agencies in your region, so 21 that we could start taking a look at those and 22 what their requirements are.

23 As I said, we did look at the state 24 ones, but we haven't looked, as far as I know, all 25 of the different non state entities. 31 1 There is a big issue about this, and 2 what's going to happen is we do decides to certify 3 non U. S. citizens, so I don't really know.

4 There's been no final decisions reached on these 5 issues yet. All I can talk to you about is under 6 the current process how we are envisioning it now.

7 A lot of this could change when the 8 decision is ultimately reached that we're going to 9 be certifying non U. S. citizen owned companies.

10 And if it turns out that the number is very high,

11 then we may just not be able to do it all in 12 headquarters and the regions may have to jump into 13 the picture.

14 Well, while we're talking about 15 certification, let me go on. Under the proposal,

16 remember as I said now, we don't require any 17 certification  under the proposal there would be 18 three changes in order to meet the strict scrutiny 19 of Adarand.

20 We would no lodger accept MBE 21 self certification. Now, that is a major change 22 because right now the minority owned business 23 says, It's minority owned. Unless there's some 24 reason for us to question it, we just accept it.

25 Period. 32 1 We would recognize MBE certification 2 by a state, local, and tribal government, and 3 private certifiers, which is what we've been 4 talking about here  so long as they're criteria 5 matched those under 885 and 6 of the small 6 business act and SBA's 8A business development 7 program regulation.

8 I know this is sort of a key here,

9 as we currently accept state certification without 10 their having to adhere to these criteria. And 11 preliminary review of state certifications, we 12 have determined that not all of the state 13 certification programs meet these criteria. So 14 that could pose a problem  in fact, Debora, I 15 believe you mentioned to me there was one state 16 right here in this region  it's not Texas, but I 17 believe there's one state in this region that does 18 not meet these criteria.

19 In fact, there may be two. I'm 20 going to wait for her to come back. That will 21 pose some serious issues for EPA if under  if no 22 changes are made to how this is going to work.

23 Then we will clarify that EPA will accept DOT/ DBE 24 certifications as valid if the EPA citizenship 25 requirements are met. 33 1 Are there any more questions about 2 certification before I go onto other issues.

3 AUDIENCE MEMBER: Hello, my name's 4 Rudolph Hernandez. My company's 51 percent owned 5 by me. I'm certified with the State of Texas 6 ( indiscernible.) My question is: I never really 7 did hear you say if that qualifies or not?

8 MR. GORDON: No, it would not.

9 AUDIENCE MEMBER: I'm Kathy 10 Dougherty with Dougherty Sprague Environmental,

11 and is this only  you said only grants  the 12 only grant side of the EPA?

13 MR. GORDON: At this proposal only 14 relates to financial assistance agreements that 15 will apply to a grants and loans of under the SRF 16 program and Brownfield's Clean Water and Drinking 17 Water State Revolving Funds. This does not affect 18 your procurement

19 AUDIENCE MEMBER: It already 20 requires that you either  be SBA certified is 21 the only thing that's accepted.

22 MR. GORDON: But we won't  this is 23 a different

24 AUDIENCE MEMBER: But this is just 25 grant side? 34 1 MR. SUTTON: You're correct.

2 MR. GORDON: Now, when we go out and 3 talk to groups like this, we usually get  I'm 4 surprised so far we haven't gotten this question 5  but why are the requirements different for 6 direct procurements by EPA versus grants that we 7 give to state and local governments, and loans?

8 Why are the requirements so different?

9 Well, for one thing, Congress passed 10 laws that mandate a lot of differences. And then 11 the other, there are other legal issues about once 12 you give money to state and local governments how 13 much control you can keep on how they spend the 14 money, and the different requirements.

15 It's very different once you have 16 money leaving EPA and going to someone else, in 17 terms of the holds that we have on people versus 18 what we're spending the money ourselves. As I 19 said earlier, we would require a business entity 20 to first become certified as an MBE or WBE, by 21 SBA, DOT, under their respective programs, or by 22 tribe, state governments, local governments, or 23 independent private organizations consistent with 24 our requirements, and you can only be able to come 25 to us if you first tried to get certified by one 35 1 of them and you could not.

2 Now, there five categories of 3 categories that would not qualify for MBE or WBE 4 certification by SBA or DOT due to the differences 5 in our statutes and our programs versus theirs.

6 The first one which may be of some 7 concern to some of you ladies in the audience is 8 women owned businesses that do not meet the 9 SBA/ DOT size standard. We don't have any size 10 standards for our DBE program period. We have net 11 worth requirements under this proposal, but there 12 are no size standards about how many folks you can 13 employ.

14 For example, how much your sales are 15 per quarter or per year. So if  that's one 16 issue.

17 Another group would be disabled 18 American owned businesses under our 10 percent 19 statute, which is the requirement for the Clean 20 Air Act Research Grant that their Congress did not 21 include such a group in the 8 percent statute.

22 Our third category, private and 23 voluntary organizations controlled by individuals 24 who are socially and economically disadvantaged.

25 In that group I think we probably 36 1 would consider groups like the NAACP, and other 2 similar groups.

3 And then the next category are 4 entities which are certified under criteria which 5 are inconsistent with EPA's DBE program criteria.

6 Then there is another group  I 7 don't know whether this would affect anybody in 8 this audience, but it is a real issue.

9 There are any entity claiming that 10 is owned or controlled by socially and 11 economically disadvantaged individuals under our 8 12 percent statute. If you claim you own a business,

13 but you don't control it, under our 8 percent 14 statute, you are entitled to try to get certified.

15 But SBA and DOT both require that you have to show 16 ownership and control.

17 AUDIENCE MEMBER: I'm Mary Sullivan,

18 Associated Records and Information Services. And 19 I think that perhaps the reason that law came 20 about, from what I've heard in other discussions,

21 people are very upset about companies saying

22 I've run into it myself. They claim to be a 23 minority owned or disadvantaged entity and they're 24 really being owned by people  it may be 25 registered by that minority or my a women, but in 37 1 reality, it's run by other people, and the woman 2 never has anything to do other than show up and 3 smile. She never has a word in the business and,

4 as I understand it, a women owned business, you 5 have to have at least 51 percent ownership in 6 something.

7 AUDIENCE MEMBER: And control.

8 MR. GORDON: What I'm saying is that 9 Congress, for whatever reason, under our 8 percent 10 statute did not impose that requirement, so we 11 cannot on our own impose it, given the wording of 12 that statute.

13 WBE's would have to become certified 14 as such. And then I talked about the practical 15 effect if these provisions are adopted is that the 16 individuals with a net worth greater than or equal 17 to $ 750,000 would be precluded from initial 18 eligibility and individuals with a net worth 19 greater than or equal to $ 750,000 would be 20 precluded from continued eligibility including the 21 value of your house and your business.

22 We currently have what we generally 23 call the six affirmative steps, those are in 40 24 CFR Part 31. And then for nonprofit organizations 25 we have something we call positive efforts. Those 38 1 are the things like including MBEs and WBEs, and 2 the solicitations lists, and breaking down 3 solicitation into smaller components, so that 4 minority and women owned businesses will have a 5 better chance of competing for them.

6 All those requirements would be 7 combined into one. It doesn't really change the 8 substance of that.

9 The contract administration 10 provisions that Dave referred to earlier would be 11 quite significant changes to the way it is now.

12 First of all, a recipient will have 13 to be notified in writing by it's prime contractor 14 prior to any termination of a DBE subcontractor.

15 We do not have such a requirement now.

16 When a DBE subcontractor fails to 17 complete its work under the subcontract for any 18 reason, the recipient would have to require the 19 prime contractor to make good faith efforts in 20 hiring another subcontractor. We do not have that 21 requirement now.

22 Another requirement which we have 23 made specific, but I believe that has always been 24 our policy: A recipient must require its prime 25 contractor to make good faith efforts even if the 39 1 fair share objectives are met.

2 We get this question often posed to 3 us, Well, we've already met our goals of  say,

4 their like 12 percent  and we've already reached 5 our 13 percent. Can't we just stop?

6 And the answer is no. Because you 7 would have a chance to increase your 8 participation. It's not a quota system.

9 In other words, once a contractor 10 state meets a certain percentage, if we operated 11 it like that, that would effectively turn this 12 into a quota program, so we can't do that. That 13 would not be legal.

14 A recipient must require its prime 15 contractor to pay its subcontractor for 16 satisfactory performance within a specific number 17 of days from the prime receipt of payment from the 18 recipient.

19 Again, we do not have such an 20 existing requirement.

21 A recipient must require the 22 completion of a few new forms to prevent " bait and 23 switch" tactics at the subcontract level by prime 24 contractors which could circumvent the spirit of 25 this program. The forms would be completed either 40 1 by prime contractors or DBE subcontractors,

2 depending on the applicable form.

3 I think there's some folks here from 4 state, so I will mention this maybe a little bit 5 more than otherwise, if there weren't any state 6 representatives  the rule would require a 7 recipient to submit its proposed fair share 8 objectives and supporting documentation to  in 9 other words, that would be like to Debora  no 10 later than 90 days after its acceptance of the 11 assistance award.

12 This is new, and now we have these 13 kinds of requirements in our grant award 14 conditions, but it would codified in the 15 regulation.

16 Debora, now that you're back, I 17 mentioned something  I believe that you called 18 to our attention that one of your states or 19 possibly two, do not meet the certification 20 requirements. I don't want to misrepresent which 21 state or states they are. If you want to tell the 22 audience, if not, we could keep it a secret from 23 them. I leave it up to you.

24 AUDIENCE MEMBER: Arkansas and 25 Louisiana. 41 1 MR. GORDON: I wanted you to say it.

2 If anybody is here from Arkansas or Louisiana,

3 you're going  under this proposed rule  you'll 4 have to do some work to get certified, because we 5 couldn't accept the certifications from your 6 state. In one case  if I remember correctly

7 they don't certify minority owned businesses only 8 women owned businesses or whatever

9 But remember, as Dave pointed out,

10 this rule is not likely to finalized for a couple 11 years.

12 Well, let me just touch base here.

13 I'm sure some of you are wondering, Well, why does 14 it take so long?

15 Well, first of all, like a lot of 16 other things in the government, it's a 17 bureaucratic issue, but realistically speaking,

18 the comment period for this rule ends in the 19 middle of January. Then we would have to review 20 all the comments. And from my past experience,

21 most of the comments tend to come in at the end.

22 We have a six month comment period,

23 but that's just the way it is  the written 24 comments. We read all these comments, not the 25 questions so much, but the comments that you make 42 1 on the rule. We will have to answer those 2 comments and we'll have to answer the comments 3 that are submitted to us in writing.

4 Then after that, we have a work 5 room, which is composed of representatives from a 6 number of offices within EPA, for example,

7 representatives from Brownfield and the Clean 8 Water and Drinking Water State Revolving Loan 9 Funds, we have representatives from a number of 10 regions, and then there are other offices that are 11 also involved in this work.

12 Everybody brings a slightly 13 different perspective to what they think the rule 14 should be based on their own programs. To say 15 nothing about the regional differences the way 16 programs run across the country, and it just takes 17 time. And because this rule is Adarand related,

18 in the past we've had to have the Justice 19 Department take a look at this, and I have every 20 reason to believe that probably will still be the 21 case; although, I cannot inform you of that today,

22 because I don't know.

23 But it's likely they probably will 24 take a look at it, and so it just takes time.

25 This is more of interest perhaps to 43 1 the states  a recipient

2 AUDIENCE MEMBER: I'm Alton DeLarge,

3 Jr., I'm from Louisiana in New Orleans. And our 4 program was one of the programs that Debora 5 Bradford was talking about. I did plan to make 6 comments on that. If it's appropriate, I'll wait 7 until the comment period. If not, I can comment 8 now. Whatever you desire.

9 MR. SUTTON: Let's just wait.

10 AUDIENCE MEMBER: First of all, we 11 operate a DBE program in New Orleans. That 12 program came about I'm assuming as a result of the 13 Adarand decision and we're under strict court 14 order now to operate a DBE program. It's not 15 based on race or gender, but it's strictly on 16 social and economic disadvantages. We have been 17 doing that in the past and the EPA has allowed us 18 to operate our program in that manner and still 19 report as to who our MBEs and DBEs when we report 20 for those purposes, but we are under a court order 21 to operate a DBE program.

22 Now, with specific regard to some of 23 the information the summary, the name change.

24 DBE, as you're proposing, is defined as an entity 25 owned or controlled by an individual who's 44 1 socially and economically disadvantaged.

2 The Sewage and Water Board's 3 disadvantaged business program defines a DBE as an 4 entity that is 51 percent owned and controlled by 5 an individual or individuals who are socially and 6 economically disadvantaged.

7 We wouldn't like to see that 8 definition change, because the requirement of both 9 ownership and control by socially and economically 10 disadvantaged individuals is a safeguard that was 11 put in place to make sure that the program is 12 benefitting those individuals whom it was intended 13 to serve.

14 And second, I want to touch on some 15 points about certification. The EPA envisions 16 certain individuals or groups who would not 17 qualify for MBE or WBE certification programs from 18 SBE  SBA or DOT due to differences in those 19 agencies respected programs. These categories 20 include disabled American owned businesses and 21 individuals with a net worth greater than or equal 22 to $ 750,000. They would be precluded from initial 23 eligibility. And individuals with a net worth 24 greater than or equal to $ 750,000 would be 25 precluded from continued eligibility. 45 1 The way our program operates is 2 that rather than make determinations on 3 eligibility based on income, gross receipts, or 4 net worth, applicants submitted to the Sewage and 5 Water Board for Social and Disadvantaged Business 6 Program are reviewed as a whole on a case by case 7 basis. And they're reviewed by independent 8 certifications panel.

9 This includes historical, social 10 disadvantages, present social disadvantages,

11 economic disadvantages for the individuals, and 12 economic disadvantages faced by the business.

13 The DBE program has been extremely 14 successful. We've been honored in the past by EPA 15 for doing so, and we wouldn't want to depart from 16 the eligibility requirements that we now use.

17 MR. GORDON: Okay. Thank you.

18 AUDIENCE MEMBER: Tom Jordan from 19 the City of Fort Worth. I have two things that I 20 want to address  comment on. There are some 21 provisions that I wish the EPA would consider.

22 One, is the payment of retaining. That it is a 23 very important factor in contracting nowadays.

24 When contractors  prime contractors hold the 25 money  retain the money, when the subcontractors 46 1 have finished months and months and months before 2 the contract is completed, presently in our 3 program, we pay  we demanded that the retaining 4 be paid should be paid after the contract has 5 completed  that subcontractor has completed.

6 And that's one thing I think that EPA should 7 consider.

8 The next thing is to develop some 9 type of provision  and I notice you don't have 10  you didn't say it  discrimination clause 11 should be added to that policy.

12 MR. GORDON: I believe that's 13 already in our requirements.

14 AUDIENCE MEMBER: Yes. Good 15 morning. My name is Gerard Victor and I'm an 16 attorney with the Sewerage and Water Board, the 17 agency that Mr. DeLarge represents. Most of the 18 time I think I'm on retainment from Mr. DeLarge.

19 I wanted to piggyback on one of the things he 20 said, and I hope that would it would be a 21 consideration, and I'm not sure when Ms. Bradford 22 refers to Louisiana has being one of those that 23 may not meet the requirements, if that includes 24 Sewerage and Water Board, but my concern is that 25 those particular recipients who have programs and 47 1 those programs and local governments that may have 2 requirements that may be a little bit more in 3 depth or strict than what the more general 4 requirements that appears in this summary, I would 5 hope that would be considered by the EPA as a good 6 thing and not a bad thing. Because as 7 Mr. DeLarge pointed out one of the constant 8 problems we have is making sure that the persons 9 who were entitled to the preference given by these 10 programs are actually the persons who are being 11 certified.

12 And when the requirements are very 13 loosely construe, then you open the door to 14 situations where there's criticism from companies 15 that may not necessarily qualify.

16 The other question that I had was a 17 comment that you had made with regard D3 in your 18 summary on Page 4 when you stated a recipient must 19 require its prime contractor to make good faith 20 efforts even if the fair share objectives are met.

21 The only concern I have from a legal 22 stand point is I know when we do business with a 23 prime contract, it's the result from a publically 24 advertised bid. And then in that publically 25 advertised bid, we generally will put a goal that 48 1 we want that prime contractor to meet, in terms of 2 utilizing certain DBEs.

3 If a prime contractor submits and in 4 his bid, he meets that goal or has a goal that

5 or indicates something that someone higher, we're 6 not in a position on a publically bid contract to 7 go back to him and say, We want you to go back out 8 there and do something more.

9 Generally, whatever is advertised 10 and required, if it's 10 percent or 20 percent or 11 30 percent, if they submit the lowest bid and they 12 indicate that they're meeting that percentage 13 through the use of certified DBEs, we're not in a 14 position to go back and tell them, Well, I think 15 you could have done better. We won't accept your 16 bid until you come back with 35 percent.

17 MR. GORDON: That's not  I think 18 make there's a miscommunication here. What we're 19 talking about is where a prime contractor divides 20 up a contract into, let's say, six or seven 21 segments, and it has an overall goal on the whole 22 contract, and then on, let's say, one segment,

23 they meet whatever the goals are for the whole six 24 or seven segments, we've had people come to us and 25 say, Do we have to do anything else? 49 1 And the answer is no. They just 2 have to keep going through the good faith efforts 3 with each of the segments and not just stop.

4 That's what that's referring to.

5 Are there any other questions before 6 I go on to something else? Okay.

7 I was talking about submission of 8 the fair share goals, and I think what I was 9 saying is that the goals would have to be 10 submitted to, let's say, to Debora no later than 11 the 90 days after a recipient's acceptance of the 12 of the assistance award. That would be codified 13 in the regulations.

14 A recipient could not spend any of 15 its financial assistance award for procurement 16 until the fair share objective negotiation process 17 has been completed. Costs of preparing an 18 availability analysis or disparity study may be 19 grant eligible depending on the specific fact 20 situation. .

21 I think most of this audience is 22 composed of business owners, so I will just say 23 this and those local governments that want to 24 negotiate their own goals with the EPA, that those 25 goals have to be based on availability, as Dave 50 1 pointed out earlier, of qualified minority and 2 women owned businesses to do the work. And our 3 four specific categories are construction,

4 services, supplies, and equipment.

5 So the cost of preparing one of 6 these studies may be grant eligible depending on 7 the on the specific paths involved.

8 We envision that the fair share 9 goals would remain in effect for three fiscal 10 years. If significant changes occur during that 11 time period rendering the data obsolete, then the 12 recipient and EPA will renegotiate the goals.

13 Another significant change from 14 current requirement is that a non State agency 15 recipient could only use the State agency's MBE 16 and WBE fair share objectives. If it uses the 17 same or substantially similar relevant geographic 18 for its procurement for those four categories that 19 I talked about.

20 I'm not sure I want to dwell on that 21 so much here today, because it seems that this 22 audience is mostly composed of business owners,

23 but for those of you who are here representing

24 if any of you are  locality, that could 25 potentially affect how you negotiate with Debora. 51 1 And race and gender conscious 2 efforts  to the extend good faith efforts

3 remember, the good faith efforts are what we call 4 the six affirmative steps. Those are what I 5 talked about a little while ago about  for 6 example, requiring a prime contractor  if it 7 awards to a subcontract  to try to solicit 8 minority and women owned businesses.

9 By such methods as dividing 10 contracts into smaller portions so that minority

11 and women owned businesses will have a greater 12 share  a greater possibility of getting those 13 contracts.

14 Sorry. I didn't get to my room 15 until very late last night due to the 16 thunderstorm, so I'm a little bit under the 17 weather here.

18 Okay. We talked about race and 19 gender conscious efforts. If a state, for 20 example, negotiated MBE and WBE goals with Debora,

21 let's say 12 percent for MBE and 6 percent for 22 WBE. And then year after year, they come in with 23 3 percent and 1 percent, then there seems to be,

24 on its face, something wrong. Either analysis 25 whereby the goals were determined might be faulty 52 1 or there's something else that's just not working 2 properly. So we would encourage a recipient or 3 prime contractor to take reasonable rates under 4 gender conscious actions in those types of 5 situations to the extent necessary to more closely 6 achieve the fair share goals.

7 Those can include price incentives 8 and technical evaluation credit. Prior 9 notification of the contemplated action to. EPA 10 is required.

11 As Dave pointed out before, there 12 are some exemptions in this rule. We would 13 propose that to exempt recipients of an EPA 14 financial assistance agreement in the amount of 15 $ 250.000 or less for any single assistance 16 agreement, or of more than one with a combined 17 total of $ 250,000 or less in any one fiscal year.

18 Now, the fair share requirements,

19 again, I know it's hard to follow sometimes all of 20 this. Those are the requirements that the state 21 and sometimes local governments if they want to 22 have their own goals negotiated with Debora, those 23 are the issues that had to do with this $ 250,000 24 exemption.

25 Theres' some specific requirements 53 1 that are related to the Clean Water SRF, the 2 Drinking SRF, and Brownfields. Is there anybody 3 here from the state that work to on those 4 programs? Okay.

5 We would propose that recipients 6 not be requires to apply the fair share objective 7 requirements to an entity receiving an identified 8 loan in the amount of $ 250,000 or less or to an 9 entity receiving more than one identified loan 10 with a combined total of $ 250,000 or less in any 11 one fiscal year.

12 Recipients of identified loan 13 projects could use State negotiated MBE/ WBE goals 14 if they used a substantially similar relevant 15 geographic market.

16 Well, what does that mean? Let's 17 say Texas  and I don't know whether this is the 18 case or not  but in some states the relevant 19 geographic market may be the whole state. If a 20 state has state wide procurement  if a project 21 is awarded to Dallas  let's say the City of 22 Dallas  they would have to use the same 23 procurement that the ( indiscernible.) So they 24 would have to solicit state wide.

25 If they're not doing that now, they 54 1 would have to change the way they implement their 2 program.

3 Otherwise, they would have to 4 negotiate separately with Debora, which is often 5 done anyway. We have a lit of examples of local 6 governments that do not want to use state 7 negotiated goals. I can think of a number of 8 places  Chicago, for example, Detroit, which 9 have large minority population, and they've 10 decided that they want to have higher goals for 11 their states, so they negotiate separately.

12 We're getting back to the SRF 13 programs and Brownfield. If procurements will 14 occur over more than one year, the recipients can 15 choose to apply the fair share objective in place 16 either for the year in which the identified loan 17 is awarded or for the year in which the 18 procurement action occurs. And the recipient must 19 specify this choice in the financial assistance 20 agreement or incorporate it by reference.

21 Other exemptions. Grants to tribes 22 and intertribal consortia that are eligible to be 23 included in Performance Partnership Grants are 24 exempt fro fair share negotiations.

25 Is there anyone in this group from 55 1 an Indian tribe? Okay.

2 Well, let's go on. TAG grants.

3 Those are super fund grants to community entities 4 to advise citizens about how they can get involved 5 in the negotiation process for cleaning up super 6 fund sites are also exempted from the fair share 7 negotiations requirements.

8 The rule will propose a three year 9 phase in period for insular areas. Insular areas 10 are Puerto Rico, Virgin Islands, and the various 11 trust territories of the country and, I think,

12 South East Asia. There would be a three year 13 phase in period to allow them time to adjust to 14 the change. The interim, they would have to 15 comply with the rule's other requirements. We are 16 in the process of trying to identify what specific 17 factors should be taken into account in 18 determining the phase in period for these 19 recipients.

20 A number of new terms, like,

21 disparity and study.

22 Record keeping and reporting  this 23 is a change. A recipient of a Continuing 24 Environmental Program Grant or other annual grant 25 would be required to create and maintain a bidders 56 1 list.

2 Does Texas have such a list now?

3 AUDIENCE MEMBER: No. We have refer 4 everyone to state lists. I've heard that the 5 Water Board has lists for our financial advisors 6 and engineers, but those are the only lists that 7 we maintain at the Water Board.

8 MR. GORDON: Okay. Such a list 9 would have to be kept until the grant project 10 period has expired and the recipient is no longer 11 receiving funding under the grant.

12 Same requirement would apply for 13 recipients of identified loans under the Drinking 14 Water and Clean Water Act Programs. If the loan 15 recipient is subject to or wishes to follow a 16 competitive biding requirements. Only under those 17 circumstances.

18 The purpose for the bidders list is 19 to provide the recipient and entities receiving 20 identified loans who conduct competitive 21 bidding  remember now we're not requiring them 22 to do competitive bidding. What we're saying is 23 if they are subject to under their own state laws 24 or they choose to follow competitive bidding 25 requirements, then they would have to keep this 57 1 list.

2 The list would only be kept until 3 the project period for the identified loan has 4 ended.

5 Waivers  the OSDBU director can 6 grant waivers from any requirements of this 7 proposal that are not based on a statute or 8 Executive Order.

9 We are the process of conducting 10 public hearings. As Dave pointed out, Jeannette 11 Brown and my colleague  my fellow attorney,

12 Kimberly Patrick, are in Syracuse, New York this 13 week for hearings there. And we will be 14 continuing hearings through the end of the comment 15 period, which is January 20th.

16 Are there any more questions?

17 AUDIENCE MEMBER: Mary Sullivan.

18 Since my job as an information and records manager 19 involves helping agencies write retention 20 schedules, one of the requirements, at least on 21 state levels, so I don't know if it's federal 22 level, too  is that if you receive a grant, you 23 keep all your financial records  everything

24 documents of those financial records, which I 25 think the bidders list would be documentation, 58 1 for  depending on the initial statement of the 2 length of the grant for three, five, seven, years 3 after the grant has been completed and the project 4 closed, and you're saying that you destroy the end 5 at the end of the project?

6 MR. GORDON: Well, no. We didn't

7 we didn't say destroy it. We're were just saying 8 you have to keep it for a certain period of time.

9 AUDIENCE MEMBER: But isn't that the 10 logical sequence, that if you weren't required to 11 keep it, that the company would just let it go?

12 Would they know they needed to keep that list 13 documentation if it wasn't stated.

14 MR. GORDON: Well, it's possible 15 that under state laws or local laws that these 16 retention periods could be much higher than EPA.

17 We were just proposing a standard for EPA. The 18 states can always have more stringent  and local 19 governments can always have more stringent 20 requirements.

21 AUDIENCE MEMBER: Right. But what 22 I'm saying is if that if you're saying that you 23 just keep that bidders list until the end  or 24 within three years, that's not the length of the 25 grant, is it, unless it's stated initially? Are 59 1 you just saying that when the grant is finished,

2 everything goes away? That there is no retention 3 period or subsequent history to the grant?

4 MR. GORDON: Hold on. I don't think 5 that's right. I think we said three years after 6 the project is completed.

7 Yeah. Look on M1, the list has to 8 be kept until the grant project period has expired 9 and the recipient is no longer receiving funding 10 under the grant.

11 AUDIENCE MEMBER: Right. But 12 there's no post grant period that you keep the 13 list or the paperwork.

14 I'm sorry. I may be dwelling on 15 something, but it is significant, at least on 16 state level with grants, so I thought it would be 17 significant on the federal level that you would 18 keep your paperwork for a certain period of time 19 after the grant is completed, I think.

20 MR. GORDON: Well, we're talking 21 about maintaining a bidders list. Is that

22 AUDIENCE MEMBER: And documentation.

23 To me it's part of the financial package.

24 MR. GORDON: Okay. Well, we'll take 25 your comment into consideration. 60 1 AUDIENCE MEMBER: Thank you.

2 AUDIENCE MEMBER: Patricia Loving,

3 State of Texas. I need some clarification, Mark,

4 because certain people within our board thought 5 that the $ 250,000 exemption meant that entities 6 which received loans under $ 250,000 would not have 7 to follow the six affirmative steps. And so I 8 just want to come back from this to say, that is 9 incorrect because that's when I had a couple 10 people reading this and they said, Oh, they're 11 exempt. And I said, No, they're not.

12 MR. GORDON: No, they're not exempt 13 under the proposal. They're exempt from the fair 14 share negotiations.

15 AUDIENCE MEMBER: Correct. Correct.

16 The other question that I had was in regarding 17 reporting requirements. When will there be the 18 forms available to look at on the EPA site for 19 review?

20 MR. GORDON: They're available on 21 our website now.

22 AUDIENCE MEMBER: Oh, they are?

23 Because when I looked a couple weeks ago, they 24 weren't.

25 MR. GORDON: Well, I asked that they 61 1 be posted a couple weeks ago.

2 AUDIENCE MEMBER: Maybe I looked 3 before they were available because I had concerns 4 with those to see because that's going to require 5 us to do a lot of revising and changing on the 6 people who write our contracts to make sure we 7 have all the new stuff in.

8 And I hope we have an opportunity to 9 review those forms, because I think it's very 10 important that the states have an opportunity to 11 review them to insure that they're going to work 12 into the contract. Because I know when you 13 revised your form, we have to do quarterly to 14 Debora, it would have been a little more helpful 15 for those of us who have large programs that have 16 had that Page Number 2 done a little differently 17 to keep track of our large volume.

18 MR. GORDON: Well, I'm not sure 19 whether they're on our website or whether they're 20 on the docket, but they are definitely in the 21 docket for this rule making, and you can get 22 access to the docket on the website.

23 AUDIENCE MEMBER: Okay. So if I 24 have trouble, I can e mail somebody?

25 MR. GORDON: Yes. 62 1 MR. SUTTON: One comment about the 2 forms. Mark, you and Debora can probably help me 3 out on this. The revised ( indiscernible,) that's 4 already been approved, correct?

5 MR. GORDON: Yes.

6 MR. SUTTON: And I do believe from 7 input primarily from people like Debora, I think 8 the forms are better. I think they're more 9 explanatory. That Page 2 has a lot more details 10 in terms of how to fill them out. Correct,

11 Debora?

12 AUDIENCE MEMBER: Correct.

13 AUDIENCE MEMBER: You could have 14 done it a little easier for those of us who are on 15 computerized systems. That was my only comment.

16 But I hope the next person will the opportunity to 17 review that when you change the forms again.

18 MR. SUTTON: I suggest you e mail 19 Debora or contact me, and I'll make sure you get 20 the forms and take a look and we'll appreciate any 21 comments you have on them.

22 AUDIENCE MEMBER: Thank you so much.

23 And the other concern I have  and I don't know 24 where it comes from  the issue 35.503F MBE/ WBE 25 truckers and haulers. So are you the prime 63 1 contracts are going to have to look at all this 2 information to approve the truckers and haulers?

3 MR. GORDON: Check our guidance, our 4 current guidance and it talks about truckers and 5 haulers. It comes from that.

6 AUDIENCE MEMBER: Okay. I must have 7 missed that.

8 MR. GORDON: Well, because the 9 theory is that there should be a legitimate 10 business. And if you're not actually engaged in 11 business, it shouldn't be counted as

12 AUDIENCE MEMBER: Right. The only 13 comment that I would like to make here, because we 14 will be submitting written comments on more 15 specific  is that the issue of persons who are 16 legally in the United States but who may not be 17 United States citizens be looked at, because I 18 have  particular in our program in the border 19 areas  we accept lots and lots of 20 self certifications for individuals. Because 21 everyone knows them in town, so that's one of the 22 issues I would at some point look at that.

23 Thank you.

24 MR. GORDON: Well, we will look at 25 it. Just to say, we don't have any idea of how 64 1 many companies this involves. And this could turn 2 into, basically, be a resource issue. And we 3 don't know how many people the agency will have to 4 deal with these certifications and if we're 5 talking about huge numbers of companies to be 6 added to the numbers that we would otherwise have 7 to certify, I'm not sure whether headquarters 8 would be able to do this. We have had discussions 9 with the regions and it becomes a resource issue.

10 That's all I can say at this time.

11 DOT, by the way, has a much larger 12 staff for its program than we could possibly 13 imagine having for ours.

14 AUDIENCE MEMBER: My name's Keith 15 Sanders with the Arkansas Soil and Water 16 Conservation. The question I have is on Page 9 of 17 the summary where it requires  Number 1, where 18 it requires a state to maintain  or create and 19 maintain a bidders list.

20 Does this mean that the DOT and the 21 SBA and the ADED  Arkansas Department of 22 Economic Development, which has been approved by 23 EPA for us in the past  are these no longer good 24 enough? Is that what we this is saying, that we 25 have to create another bidders list of some sort? 65 1 MR. GORDON: Well, you would have to 2 create a bidders list of all companies that bid on 3 your project.

4 AUDIENCE MEMBER: Historically? Is 5 that what we're talking about?

6 MR. GORDON: Well, that's a good 7 point. I don't think we got into that 8 specifically. Certainly from here on in you would 9 have to creat such a list of all companies that 10 put in a bid on your project. We have to think 11 about how far back that should go, if at all.

12 AUDIENCE MEMBER: Thank you. And 13 the next one. In Number 2, I believe, now we're 14 required  cities or entities that borrow this 15 money from us, we already require them, like, 11 16 months worth of paperwork. And we're sympathetic,

17 and Arkansas is proactive in our contracts hiring 18 minority businesses and disadvantaged enterprises,

19 but another demand on the entity in requiring them 20 to keep a list when  I don't know if that's to 21 meet the narrowly tailored language of Adarand

22 I'm curious. Is that the reason for that? Or do 23 you know?

24 MR. GORDON: Well, it's designed 25 among other things to get at this comment that we 66 1 hear all the time, that people say that they can't 2 find any in MBEs and WBEs in their specific 3 geographic location. And when they go out for 4 bids they don't get anybody who is a minority or 5 woman owned business to compete, for example.

6 So we're asking them to keep the 7 bidders list so that in the future when they go 8 out and bid contracts that they certainly try to 9 solicit all the companies that have submitted bids 10 to begin with.

11 AUDIENCE MEMBER: And these lists 12 that the entities would keep, these would be DBEs 13 that are certified through the same kind of lists 14 that we already provide the prime contractors with 15 as the lending agency

16 MR. GORDON: I can't comment on that 17 because I don't know whether your requirements 18 really conform with ours, but if assuming for the 19 moment that they did, that would be the list. But 20 I'm not sure your certification requirements meet 21 EPA requirements.

22 AUDIENCE MEMBER: I think my 23 question is: It looks like an additional list.

24 MR. GORDON: It is an additional 25 list for the SRF loan recipients because their 67 1 programs operate very differently than agencies.

2 AUDIENCE MEMBER: Okay. Thank you.

3 AUDIENCE MEMBER: My name is Dan 4 Dominguez with the Texas Commission on 5 Environmental Quality. And I just wanted to 6 follow up on the bidders list specifically. Will 7 every agency have to maintain this bidders list 8 which I assume is potential bidders, not actual 9 bidders that have bid in the past for similar 10 types of contracts or work?

11 MR. GORDON: No. It is a list of 12 companies who have submitted bids.

13 AUDIENCE MEMBER: That have 14 submitted bids in the past?

15 MR. GORDON: Well, that's something 16 we'll have to look at and find how far back the 17 list is going to go.

18 AUDIENCE MEMBER: The state 19 currently has a centralized master's bidders list 20 that includes HUB; however, my understanding, sir,

21 is that these HUBs aren't won't be recognized in 22 the new rules because they're not SBA recognized 23 ( indiscernible. So we're just a little unsure as 24 how we would have the

25 MR. GORDON: Now, wait. HUB Zones 68 1  you still have to make good faith efforts to 2 utilize HUB Zones. That's different from the 3 goals. We don't count  we only have two types 4 of goals. We have minority owned businesses and 5 women owned businesses.

6 The goals for them, but for purposes 7 of trying to have more entities get into the 8 solicitation process, you have to do outreach 9 efforts to HUB Zones, as well.

10 AUDIENCE MEMBER: Mark, I just want 11 to make a clarification. I don't think he's 12 talking about the federal HUB Zone Program. In 13 the state of Texas, they call their DBE program 14 " HUB." It's not the federal HUB Zone program 15 that's done by SBA. But in the state of Texas,

16 they have  what their program is called is the 17 HUB program.

18 MR. GORDON: Okay. Would you 19 restate your question again?

20 AUDIENCE MEMBER: I just wanted to 21 clarify that on the new proposed rule that every 22 agency would have to maintain their own list of 23 potential HUB bidders, that I assume we would get 24 from the SBA or DOT and maintain this list so when 25 we solicit bids, we would send these  to 69 1 these

2 MR. GORDON: Why would you be 3 limiting yourself to lists that you get from SBA 4 or DOT?

5 AUDIENCE MEMBER: Well, how would 6 you determine these HUB or these minority 7 businesses

8 MR. GORDON: Whoever submits the bid 9 to you.

10 AUDIENCE MEMBER: Right. But how 11 would we manage  or how would we go about 12 finding out all these potential

13 MR. GORDON: Well, you would look in 14 places like ( indiscernible) and places like that 15 to try to find all the minority and women owned 16 businesses that are available in your area.

17 MS. RAMSEY: Mark, I think that 18 we're using the term as it's set forth in the 19 proposed rules. When you talk about bidders,

20 we're talking about companies that have submitted 21 a bit. And when you creat a tabulation of bids at 22 the time you opened the bid. That's what will 23 comprise that bidders list.

24 That bidders list may very well have 25 bidders on it that are on your HUB list and they 70 1 may have them on the North Central Regional 2 Certification list, they may come from a variety 3 of lists. They may also not be on any of those,

4 but they represent a group of ( indiscernible.)

5 So from this point forward, if those 6 tabulations are kept systematically, then that's 7 one ( indiscernible) from the various other lists.

8 AUDIENCE MEMBER: Thank you.

9 AUDIENCE MEMBER: Patricia Loving,

10 Texas Water Development Board. For those of us to 11 maintain a centralized bidders list at our board 12 for all the contracts  for all the loans that we 13 have let out, it would be a little impossible. We 14 track on our data system by contract for the City 15 of Houston  say, we just gave them $ 100,000,000.

16 That might be 50 individual contracts that we 17 track.

18 And of those contracts, we will have 19 the winning bid. The City of Houston has a 20 sophisticate enough system that they have a 21 bidders list and they have all those people on 22 their own bidders list. I think my concern is 23 two fold.

24 First, from the state perspective,

25 that we would not be able to have the person power 71 1 to  or the money at this point  to maintain 2 any kind of a list of every single person who's 3 ever bid on any one of our contract.

4 The second point would be that for 5 very small entities  that's why I wanted to talk 6 about the $ 250,000, because our Drinking Water 7 Program  we have quite a few programs that come 8 in under $ 250,000  and I, basically, well be 9 that person who does all that outreach, and get 10 them all the names, and get them all the lists,

11 ( indiscernible) because many of our entities don't 12 even have internet access.

13 I understand the intent of it, but 14 I'm just really concerned how it's going to fall 15 out at the state and local level.

16 AUDIENCE MEMBER: Tom Jordan with 17 the City of Fort Worth. I think many of you are 18 making a mountain our of a mole hill. Because 19 this is not a major problem, believe me.

20 The State of Texas for  or any 21 other agency  when your contractors bid to 22 whoever, the engineer or the project manager 23 develops a listing of whoever bid. The only thing 24 you need to do is when they submit  when they 25 finish with that bid, that is the bid list. Have 72 1 you send you a copy. That's all.

2 I would also like to say that the 3 City of Fort Worth  we're probably one of the 4 few people in the country right now  we require 5 that when at a prime contractor submits a bid to 6 us, and I can fax  e mail you a form  we have 7 on that form where they check off if that firm is 8 DBA certified, ( indiscernible) certified, or is a 9 non certified firm. They have to list prime

10 MWB/ DBE contractor and non MWB contractors on that 11 form.

12 It is a requirement. And that way 13 that helps us also to look and see  when all the 14 contractors submit that, we have another project 15 coming along, who bid it, who ( indiscernible),

16 and what they did.

17 I think it's very important and it 18 helps you establish some type of record of that.

19 AUDIENCE MEMBER: Well, what we have 20 at the State of Texas  we have similar forms 21 that are required by everyone who receives any of 22 our grant money that they have to provide 23 documentation on their good faith efforts,

24 documentation on who they hired, and have to have 25 contract ( indiscernible). 73 1 We have all of that information 2 because we have to use to report to the 3 ( indiscernible).

4 AUDIENCE MEMBER: All that does is 5 if you have a list of everybody, that helps you to 6 go after them and say, Hey, you that have a 7 minority contractors here that can bid on this, or 8 you have to justify to me why you cannot use a 9 minority business.

10 AUDIENCE MEMBER: Well, that's 11 because you're at the city level and we're at the 12 state level. And this is a goal oriented process 13 ( indiscernible) program. So as long as we have 14 enough process documentation showing where 15 somebody made a good faith effort and went out and 16 got all their good faith efforts, it is not a 17 requirement of them to meet that goal.

18 And in particular, in some of our 19 areas were we do not  in some rural areas where 20 we do not have women owned businesses or 21 minority owned businesses, then we cannot

22 they'll probably never get to meet the goal, and 23 ( indiscernible.)

24 I think one of the things that I 25 wish we could do was report small businesses in 74 1 rural areas, because I have lots of small 2 businesses in rural areas, but there's no place to 3 report it ( indiscernible).

4 AUDIENCE MEMBER: I just wanted to 5 get a clarification on this bidders list. So if 6 the recipient is using  say, ( indiscernible) or 7 SBA or the State of Texas HUB list, they use that 8 and they do their solicitation. And companies 9 come in and bid. And then you're saying that 10 recipient has to do one extra step, which is 11 everyone that came in to bid, record their name or 12 keep this list. So the next time that they go out 13 for another proposal or another contract, they 14 will also send bid notices to those people on this 15 list  the secondary list, in addition, to using 16 ( indiscernible,) SBA, and the HUB lists.

17 Is that what we're essentially 18 saying here, Mark?

19 MR. GORDON: Yes. Well, one of the 20 reasons is that we hear people come in and say 21 sometimes that they tried to get a contract one,

22 two, or three years ago. And they weren't even 23 solicited on another solicitation and they 24 wondered why they weren't solicited.

25 AUDIENCE MEMBER: If we don't place 75 1 ( indiscernible) or require them to pick the same 2 companies every time.

3 MR. GORDON: No. You're

4 AUDIENCE MEMBER: That would create 5 the same network that you're trying to fight 6 against in a different manner. They use the same 7 contractors every time.

8 MR. GORDON: Well, we're not 9 requiring them to use any particular company.

10 What we're saying is that they need to know to 11 solicit as wide a base of companies as possible.

12 MR. SUTTON: Okay. While the rest 13 of you are still busy thinking about comments, I 14 noticed we have a few people leaving. And to make 15 everyone knows how to submit a written comment,

16 please make sure you have a copy of the questions 17 and answers. It's a two page document, front and 18 back. It talks about the EPA docket, how you can 19 submit your comments.

20 So make sure you have a copy of 21 these Q's and A's, and make sure you follow the 22 process for submitting written comments. With 23 that, we'll open the floor for more questions.

24 And comments.

25 Any more questions, comments, 76 1 anything you want to tell us today.

2 AUDIENCE MEMBER: Yes. Dan 3 Dominguez with TCEQ. I think it would be helpful 4 if you could define words. When you say 5 " bidders," at the state, but those words mean 6 completely different things to us, or " HUB."

7 If you could maybe put in some 8 definitions on your proposed rule change. It 9 would definitely help us be able to make a more 10 educated comment.

11 Thank you.

12 MR. SUTTON: This is just a 13 reminder, we do need your comments by January 14 20th, 2004.

15 MS. BRADFORD: I'd like to thank you 16 all for coming. If there are no additional 17 questions

18 AUDIENCE MEMBER: I have one. I'm 19 sorry.

20 AUDIENCE MEMBER: I just would like 21 to say that in the language of the actual written 22 rule, I think it's very confusing that you keep 23 talking about MBEs and WBEs without first 24 explaining that they have to be certified as one 25 of those, and then a DBE. 77 1 And I think you should get 2 consistent about it because I think those people 3 that aren't in the federal arena are going to be 4 very confused. Because I am an ( indiscernible)

5 and I was DBE certified, but I'm also a WBE, so I 6 think that people aren't  from what is written 7 there in the actual language  understand. I 8 recognize the $ 750,000 as the federal thing for a 9 ( indiscernible) 8A, but I think you should make 10 that very clear distinction.

11 You say on some of that, First, you 12 get certified as an MBE. First, you get certified 13 as a WBE. Then you also have to have some 14 certification through some agency, so that's my 15 comment.

16 MS. BRADFORD: Thank you, again.

17 Any additional comments. I do want to thank you 18 all for taking the time out of your schedules to 19 come here today. And your comments, like I said,

20 are very important. And you as vendors, the 21 program is really designed, and will try to help 22 the DBEs. The whole purpose of the program is to 23 give an opportunity for everyone to come to the 24 table and to participate in the procurement.

25 Like I was telling you earlier, 78 1 there's a lot of funding that goes out in the EPA 2 grant program to our recipients. And a lot of 3 those recipients are state recipients, local 4 governments, tribal recipients, universities,

5 nonprofit organizations. All of those entities 6 are receiving funds from EPA, and as part of that 7 grant condition, there are BDE requirements.

8 So they're doing any type of 9 procurement activity, they should be applying to 10 those dollars. And you can knock on their doors 11 and say, I want to get on this list. Or how do 12 I  what do I need to do to do business with that 13 agency.

14 But, like I said, we do thank you 15 all for coming. I appreciate it. And without any 16 further notice

17 MR. SUTTON: Just one comment,

18 Debora. I'd just like to reiterate what Debora 19 said about the size of this program. To put it in 20 perspective, EPA is not one of the larger federal 21 agencies. We do about one billion a year in 22 contract. That's direct procurement, but this 23 program  the grant program, over four billion 24 dollars a year. So this is really where EPA's 25 dollars are, and if you're a small business, you 79 1 want the money. You don't care if it's coming 2 from a contract or it it's coming from a grant 3 recipient.

4 But if you have any questions about 5 this grant program, if you want to know, Well,

6 which state agencies are getting the big grant 7 dollars for Region 6, talk to Debora. Because 8 Debora can let you know where these dollars are 9 and what you have to do as a disadvantaged 10 business, as a woman owned business, is go to 11 these state agencies  which those that want to 12 get the big dollars  and market yourselves and 13 try to go after some of these funds.

14 MS. BRADFORD: Thank you all for 15 coming. We're going to call this hearing to a 16 close.

17 ( End of proceedings)

18 19 20 21 22 23 24 25 80 1 THE STATE OF TEXAS *

2 COUNTY OF DALLAS *

3 4 THIS IS TO CERTIFY THAT I, Alma S.

5 Rodriguez, a Certified Shorthand Reporter in and 6 for the State of Texas, reported in shorthand the 7 meeting minutes given at the time and date set 8 forth in the caption thereof, and that the above 9 and foregoing pages contain a true and correct 10 transcript of said minutes.

11 12 This the __________ day of _________, 2003.

13 14 _____________________________ 15 ALMA S. RODRIGUEZ Certified Shorthand Reporter 16 in and for the State of Texas Certification Number: 8115 17 Date of Expiration: 12/ 31/ 05 Esquire Deposition Services 18 Firm Registration No. 286 703 McKinney Avenue 19 Suite 320 Dallas, Texas 75202 20 214 365 9200 21 22 23 24 25


[Federal Register: May 7, 2009 (Volume 74, Number 87)]
[Notices]
[Page 21354-21355]
[DOCID:fr07my09-49]

-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings  1

April 28, 2009.
    Take notice that the Commission received the following electric
rate filings:
    Docket Numbers: ER99-2948-016; ER00-2917-015; ER00-2918-015; ER01-
1654-017; ER01-556-014; ER05-261-008; ER02-2567-015; ER05-728-008;
ER04-485-000; ER07-244-007; ER07-245-007; ER07-247-007.
    Applicants: Baltimore Gas and Electric Company; Calvert Cliffs
Nuclear Power Plant, Inc.; Constellation Power Source Generation Inc.;
Nine Mile Point Nuclear Station, Constellation Energy Commodities Group
LLC; Constellation NewEnergy, Inc.; Constellation Energy Commodities
Group Maine, LLC; R.E. Ginna Nuclear Power Plant, LLC; Raven One, LLC,
Raven Two, LLC, Raven Three, LLC.
    Description: Constellation MBR Entities submits a supplement to
their Joint Triennial Market Power Update for the Southeast Region and
Notice of Change in Status filed on 12/30/08 pursuant to Order 697-A.
    Filed Date: 04/22/2009.
    Accession Number: 20090424-0005.
    Comment Date: 5 p.m. Eastern Time on Wednesday, May 13, 2009.

    Docket Numbers: ER07-22-001.
    Applicants: Jump Power, LLC.
    Description: Jump Power, LLC submits the revised Table of Assets
for Market-Based Rate Authority and Generation Assets.
    Filed Date: 04/23/2009.
    Accession Number: 20090424-0006.
    Comment Date: 5 p.m. Eastern Time on Thursday, May 14, 2009.

    Docket Numbers: ER08-1569-002.
    Applicants: PJM Interconnection L.L.C.
    Description: PJM Interconnection, L.L.C. submits its Report to
inform the Commission of PJM's review of the impact of the
implementation of its Balancing Operating Reserve Cost Allocation
method on market and system operations etc.

    Filed Date: 04/20/2009.
    Accession Number: 20090420-4004.
    Comment Date: 5 p.m. Eastern Time on Monday, May 11, 2009.

    Docket Numbers: ER09-1025-000.
    Applicants: New England Gas & Electric, Inc.
    Description: New England Gas & Electric, Inc. submits FERC Electric
Tariff, Original Volume 1.
    Filed Date: 04/24/2009.
    Accession Number: 20090427-0153.
    Comment Date: 5 p.m. Eastern Time on Friday, May 15, 2009.

    Docket Numbers: ER09-1035-000.
    Applicants: Yankee Atomic Electric Company.
    Description: Petition for waiver of tariff provision re Yankee
Atomic Electric Company.
    Filed Date: 04/23/2009.
    Accession Number: 20090424-0145.
    Comment Date: 5 p.m. Eastern Time on Thursday, May 14, 2009.

    Docket Numbers: ER09-1036-000.
    Applicants: Connecticut Yankee Atomic Power Company.
    Description: Connecticut Yankee Atomic Power Company's Petition for
waiver of tariff provision.
    Filed Date: 04/23/2009.
    Accession Number: 20090424-0144.
    Comment Date: 5 p.m. Eastern Time on Thursday, May 14, 2009.

    Docket Numbers: ER09-1037-000.
    Applicants: Wisconsin Power and Light Company.
    Description: Application of Wisconsin Power and Light Company;
Preliminary Survey and Investigation Costs for Proposed Nelson Dewey
Generating Facility Unit 3.
    Filed Date: 04/24/2009.
    Accession Number: 20090424-5068.
    Comment Date: 5 p.m. Eastern Time on Friday, May 15, 2009.

    Docket Numbers: ER09-1039-000.
    Applicants: Southwest Power Pool, Inc.
    Description: Southern Power Pool, Inc submits for acceptance Third
Revised Sheet 226 et al to its FERC Electric Tariff, Fifth Revised
Volume 1.
    Filed Date: 04/24/2009.
    Accession Number: 20090427-0070.
    Comment Date: 5 p.m. Eastern Time on Friday, May 15, 2009.

    Docket Numbers: ER09-1040-000.
    Applicants: PJM Interconnection L.L.C.
    Description: PJM Interconnection, LLC submits Original Service
Agreement 2174 to its FERC Electric Tariff, Sixth Revised Volume 1.
    Filed Date: 04/24/2009.
    Accession Number: 20090427-0071.
    Comment Date: 5 p.m. Eastern Time on Friday, May 15, 2009.

    Docket Numbers: ER09-1041-000.
    Applicants: PJM Interconnection L.L.C.
    Description: PJM Interconnection, LLC submits First Revised Service
Agreement 1756 et al to its FERC Electric Tariff, Sixth Revised Volume
1.
    Filed Date: 04/24/2009.
    Accession Number: 20090427-0072.
    Comment Date: 5 p.m. Eastern Time on Friday, May 15, 2009.

    Docket Numbers: ER09-1042-000.
    Applicants: Southwest Power Pool, Inc.
    Description: Southwest Power Pool submits for acceptance First
Revised Sheet 9 et al to its FERC Electric Tariff, Fifth Revised Volume
1.
    Filed Date: 04/24/2009.
    Accession Number: 20090427-0073.
    Comment Date: 5 p.m. Eastern Time on Friday, May 15, 2009.

    Take notice that the Commission received the following open access
transmission tariff filings:
    Docket Numbers: OA08-111-001.
    Applicants: Portland General Electric Company.
    Description: Portland General Electric Year 2008 Annual
Informational Filing on Operational Penalty Assessments and
Distributions as Required by Order Nos. 890 and 890-A.
    Filed Date: 04/24/2009.
    Accession Number: 20090424-5130.
    Comment Date: 5 p.m. Eastern Time on Friday, May 15, 2009.
    Any person desiring to intervene or to protest in any of the above
proceedings must file in accordance with Rules 211 and 214 of the
Commission's Rules of Practice and Procedure (18 CFR 385.211 and
385.214) on or before 5 p.m. Eastern time on the specified comment
date. It is not necessary to separately intervene again in a subdocket
related to a compliance filing if you have previously intervened in the
same docket. Protests will be considered by the Commission in
determining the appropriate action to be taken, but will not serve to
make protestants parties to the proceeding. Anyone filing a motion to
intervene or protest must serve a copy of that document on the
Applicant. In reference to filings initiating a new proceeding,
interventions or protests submitted on or before the comment deadline
need not be served on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://
www.ferc.gov. To facilitate electronic service, persons with Internet
access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically should submit an original and
14 copies of the intervention or protest to the Federal Energy
Regulatory Commission, 888 First St. NE., Washington, DC 20426.
    The filings in the above proceedings are accessible in the
Commission's eLibrary system by clicking on the appropriate link in the
above list. They are also available for review in the Commission's
Public Reference Room in Washington, DC. There is an eSubscription link
on the Web site that enables subscribers to receive e-mail notification
when a document is added to a subscribed dockets(s). For assistance
with any FERC Online service, please e-mail<EMAIL_ADDRESS>
or call<PHONE_NUMBER> (toll free). For TTY, call<PHONE_NUMBER>.

Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. E9-10486 Filed 5-6-09; 8:45 am]

BILLING CODE 6717-01-P