N.Y. Executive Law § 314: Statewide certification program

* § 314. Statewide certification program. 1. The director shall

promulgate rules and regulations providing for the establishment of a

statewide certification program including rules and regulations

governing the approval, denial or revocation of any such certification

including revocations for convictions for fraudulently misrepresenting

the status of minority or women-owned business enterprises. Such rules

shall set forth the maximum personal net worth of a minority group

member or woman who may be relied upon to certify a business as a

minority-owned business enterprise or women-owned business enterprise

with a minimum personal net worth threshold of fifteen million dollars,

and may thereafter establish different maximum levels of personal net

worth for minority group members and women on an industry-by-industry

basis for such industries as the director shall determine. Such

regulations relating to the classification of the industry-by-industry

personal net worth thresholds above the fifteen million dollar threshold

shall consider the personal net worth of the owners of both certified

and non-certified businesses, including but not limited to, prime

contractors and subcontractors, as well as any such other factors needed

to establish such thresholds. Such rules and regulations shall include,

but not be limited to, such matters as may be required to ensure that

the established procedures thereunder shall at least be in compliance

with the code of fair procedure set forth in section seventy-three of

the civil rights law, and consistent with the provisions of article

twenty-three-A of the correction law.

2. For the purposes of this article, the office shall be responsible

for verifying businesses as being owned, operated, and controlled by

minority group members or women and for certifying such verified

businesses. The director shall prepare a directory of certified

businesses for use by contracting agencies and contractors in carrying

out the provisions of this article. The director shall periodically, but

no less than annually, update the directory.

2-a. (a) The director shall establish a procedure enabling the office

to accept New York municipal corporation certification verification for

minority and women-owned business enterprise applicants in lieu of

requiring the applicant to complete the state certification process. The

director shall promulgate rules and regulations to set forth criteria

for the acceptance of municipal corporation certification. All eligible

municipal corporation certifications shall require business enterprises

seeking certification to meet the following standards:

(i) have at least fifty-one percent ownership by a minority or a

women-owned enterprise and be owned by United States citizens or

permanent resident noncitizens;

(ii) be an enterprise in which the minority and/or women-ownership

interest is real, substantial and continuing;

(iii) be an enterprise in which the minority and/or women-ownership

has and exercises the authority to control independently the day-to-day

business decisions of the enterprise;

(iv) be an enterprise authorized to do business in this state;

(v) be subject to a physical site inspection to verify the fifty-one

percent ownership requirement;

(vi) be owned by an individual or individuals, whose ownership,

control and operation are relied upon for certification, with a personal

net worth that does not exceed fifteen million dollars and such other

amount as the director shall set forth in regulations, as adjusted

annually for inflation according to the consumer price index; and

(vii) be an enterprise that is a small business pursuant to

subdivision twenty of section three hundred ten of this article.

(b) The director shall work with all municipal corporations that have

a municipal minority and women-owned business enterprise program to

develop standards to accept state certification to meet the municipal

corporation minority and women-owned business enterprise certification

standards.

(c) The director shall establish a procedure enabling the division to

accept federal certification verification for minority and women-owned

business enterprise applicants, provided said standards comport with

those required by the state minority and women-owned business program,

in lieu of requiring the applicant to complete the state certification

process. The director shall promulgate rules and regulations to set

forth criteria for the acceptance of federal certification.

2-b. The director shall establish a procedure enabling an applicant

who was a military service member to prove his or her race or ethnicity,

date of birth, place of birth and verification of address for purposes

of certification of the applicant's business as a minority-owned

business by submission of the DD Form 214 issued to the applicant by the

United States department of defense upon such applicant's retirement,

separation, or discharge from active duty in the armed forces of the

United States, provided the DD Form 214 contains such information, in

lieu of requiring the applicant to otherwise prove his or her race or

ethnicity. The director shall promulgate rules and regulations to set

forth criteria for the acceptance of the DD Form 214 by the office.

2-c. (a) Each business applying for minority or women-owned business

enterprise certification pursuant to this section must agree to allow:

(i) the department of taxation and finance to share its tax information

with the division; and (ii) the department of labor to share its tax and

employer information with the division.

(b) Such information provided pursuant to paragraph (a) of this

subdivision shall be kept confidential by the division as such

information is kept by the department of taxation and finance or the

department of labor and use of such information shall be limited to the

certification application process, or other uses approved or consented

to by the business enterprise or applicant.

3. Following application for certification pursuant to this section,

the director shall provide the applicant with written notice of the

status of the application, including notice of any outstanding

deficiencies, within twenty-one days. Within forty-five days of

submission of a final completed application, the director shall provide

the applicant with written notice of a determination by the office

approving or denying such certification and, in the event of a denial a

statement setting forth the reasons for such denial. Upon a

determination denying or revoking certification, the business enterprise

for which certification has been so denied or revoked shall, upon

written request made within thirty days from receipt of notice of such

determination, be entitled to a hearing before an independent hearing

officer designated for such purpose by the director. In the event that a

request for a hearing is not made within such thirty day period, such

determination shall be deemed to be final. The independent hearing

officer shall conduct a hearing and upon the conclusion of such hearing,

issue a written recommendation to the director to affirm, reverse or

modify such determination of the director. Such written recommendation

shall be issued to the parties. The director, within thirty days, by

order, must accept, reject or modify such recommendation of the hearing

officer and set forth in writing the reasons therefor. The director

shall serve a copy of such order and reasons therefor upon the business

enterprise by personal service or by certified mail return receipt

requested. The order of the director shall be subject to review pursuant

to article seventy-eight of the civil practice law and rules.

4. The director may, after performing an availability analysis and

upon a finding that industry-specific factors coupled with personal net

worth or small business eligibility requirements pursuant to

subdivisions nineteen and twenty of section three hundred ten of this

article, respectively, have led to the significant exclusion of

businesses owned by minority group members or women in that industry,

grant provisional MWBE certification status to applicants from that

designated industry, provided, however, that all other eligibility

requirements pursuant to subdivision seven or fifteen of section three

hundred ten of this article, as applicable, are satisfied. Any

industry-based determination made under this section by the director

shall be made widely available to the public and posted on the

division's website.

5. (a) With the exception of provisional MWBE certification, as

provided for in subdivision twenty-three of section three hundred ten of

this article, all minority and women-owned business enterprise

certifications shall be valid for a period of five years.

(b) Within eighteen months of the expiration of a minority and

women-owned business enterprise certification and the submission of a

new and completed application for minority and women-owned business

enterprise certification, if there is no change in the ownership or

capital contribution relied upon for certification of the enterprise and

no material change in the nature or management of the enterprise from

the time of approval of a previous minority and women-owned business

enterprise certification that was approved within the previous six years

and six months, if such application is compliant with 5 NYCRR 144 then

there shall be a rebuttable presumption that the previous minority-owned

business enterprise satisfies the requirements of paragraphs (a) and (b)

of subdivision seven of section three hundred ten of this article and

that the previous women-owned business enterprise satisfies the

requirements of paragraphs (a) and (b) of subdivision fifteen of section

three hundred ten of this article.

(c) The division in its discretion may review applications subject to

this rebuttable presumption and issue such determination pursuant to all

applicable laws and regulations. Any presumption of minority and

women-owned business enterprise certification shall expire upon the

final determination of an application for certification.

* NB Repealed July 1, 2028