New York Codes, Rules and Regulations (NYCRR)
Title 9 Part 5311
Executive Department
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9 NYCRR 5311.1 - Purpose and scope
Source version current through Nov 15, 2021
A matched Register action is not later than the compiled-text reference date.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- Nov 15, 2021
- Related Register notice
- SGC-29-15-00014-A · Adopted rule
- Related notice published
- Sep 30, 2015
- Related notice effective date
- Sep 30, 2015
(a)The purpose of this Part is to ensure gaming facility licensees comply with the provisions of article 15-A of the Executive Law and the rules and regulations set forth in Parts 140 through 144 of Title 5 NYCRR. These policies are intended to promote and encourage maximum feasible participation by minority- and women-owned businesses in State contracting opportunities. The commission intends to apply these policies to contracting opportunities in gaming facilities licensed pursuant to article 13 of the Racing, Pari-Mutuel Wagering and Breeding Law.
(b)It is the policy of the commission to ensure that gaming facility licensees construct their gaming facility and ancillary development and conduct all aspects of their operations in a manner that assures diversity of opportunity.
(c)It is the further policy of the commission to ensure diversity in contracting by each gaming facility licensee and its contractors, subcontractors, assignees, lessees, vendors and agents.
9 NYCRR 5311.2 - Definitions
Source version current through Mar 31, 2022
A matched Register action is not later than the compiled-text reference date.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- Mar 31, 2022
- Related Register notice
- SGC-29-15-00014-A · Adopted rule
- Related notice published
- Sep 30, 2015
- Related notice effective date
- Sep 30, 2015
Unless the context indicates otherwise, the following definitions apply throughout this Part:
(a)Available means a minority-owned or women-owned business enterprise, without regard to its geographic location, that is ready, willing and able to provide a commercially useful function on a contract.
(b)Contract means a written agreement or purchase order instrument, providing for a total expenditure in excess of $25,000, whereby a gaming facility licensee is committed to expend or does expend funds in return for labor, services, including without limitation legal, financial and other professional services, supplies, equipment, materials or a combination of the foregoing, to be performed for, or rendered or furnished to, such gaming facility licensee; or a written agreement in excess of $100,000 whereby such gaming facility licensee is committed to expend or does expend funds for the acquisition, construction, demolition, replacement, major repair or renovation of real property and improvements thereon.
(c)Division means the Division of Minority and Women’s Business Development in the Department of Economic Development.
(d)Established goals means the percentage of aggregate gaming facility licensee expenditures targeted for the participation of minority- and women-owned business enterprises sought to be included in a gaming facility licensee’s operation by contractors, subcontractors, suppliers, consultants, joint ventures, teaming agreements or other similar arrangements. The commission shall adopt such goals annually. In determining what established goals are appropriate in relation to a particular gaming facility licensee, the commission shall consider the following factors:
(1)number, type and percentage of minority- and women-owned business enterprises available;
(2)potential subcontract opportunities in a contract and the availability of minority- and women-owned business enterprises to respond thereto; and
(3)disparity in the contracting area as evidenced by a relevant Department of Economic Development disparity study authorized pursuant to Executive Law section 312(a).
(e)Gaming facility licensee means the holder of a gaming facility license issued by the commission pursuant to article 13 of the Racing, Pari-Mutuel Wagering and Breeding Law as set forth in Part 5301 of this Title.
(f)Gaming facility capital project means a project undertaken by a gaming facility applicant or licensee (including affiliates of any such applicant or licensee) related to the gaming facility and any necessary improvements that include the gaming area and any other non-gaming structure related to the gaming area and may include, hotels, restaurants or other adjoining amenities.
(g)Minority- and women-owned business enterprise means a business enterprise, including a sole proprietorship, partnership or corporation that has been certified as a minority- or woman-owned business enterprise pursuant to article 15-A of the Executive Law.
(h)MWBE director means the director of the division.
(i)Subcontract means any agreement for a total expenditure in excess of $25,000 providing for services, including non-staffing expenditures, supplies or materials of any kind between the gaming facility licensee and a contractor, in which a portion of the contractor's obligation under contract is undertaken or assumed by a business enterprise not controlled by the contractor.
(j)Utilization plan means the plan annually submitted to the commission by a gaming facility licensee listing minority- and women-owned business enterprises that the licensee intends to use in the performance of its operation, or any component of operation, that the gaming facility licensee intends minority- and women-owned business enterprises to perform.
9 NYCRR 5311.3 - Establishment of a utilization plan; plan review
Source version current through Nov 15, 2021
A matched Register action is not later than the compiled-text reference date.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- Nov 15, 2021
- Related Register notice
- SGC-29-15-00014-A · Adopted rule
- Related notice published
- Sep 30, 2015
- Related notice effective date
- Sep 30, 2015
(a)Each gaming facility licensee shall annually submit to the commission for approval a utilization plan illustrating specific goals for each contract type, divided by commodities, construction consultants, construction, goods and services, and consultants; and the name, address and telephone number of each minority- and women-owned business enterprise with which the gaming facility licensee intends to contract or subcontract, or otherwise submit in connection with satisfaction of its established goals.
(b)The commission shall review each utilization plan within 20 business days, consistent with section 142.6(c) of Title 5 NYCRR. If the commission does not approve such utilization plan, the commission shall provide the gaming facility licensee a written notice of utilization plan deficiency within 20 business days of the receipt of the proposed plan. Should a notice of deficiency be issued, such notice shall include, without limitation, the following:
(1)a list of minority- and women-owned business enterprises that the gaming facility licensee could potentially use;
(2)the name of any minority- and women-owned business enterprise that is not acceptable for the purpose of complying with the established goals; and
(3)any other information that the commission determines to be relevant to developing an approvable minority- and women-owned business enterprise utilization plan.
The commission shall promptly provide the division with copies of all documents that are submitted to it by the gaming facility licensee under this section.
9 NYCRR 5311.4 - Contract approval and quarterly reporting
Source version current through Nov 15, 2021
A matched Register action is not later than the compiled-text reference date.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- Nov 15, 2021
- Related Register notice
- SGC-29-15-00014-A · Adopted rule
- Related notice published
- Sep 30, 2015
- Related notice effective date
- Sep 30, 2015
(a)The gaming facility licensee shall include in all of its procurement solicitations and contracts related to gaming facility capital projects language provided by the commission that promotes and encourages the maximum feasible participation by minority- and women-owned businesses in such contracting opportunities.
(b)A gaming facility licensee shall submit all of its procurement contracts for gaming facility capital projects to the commission for review and approval by the division prior to the execution of such contract by the gaming facility licensee. No such procurement contract shall be effective unless and until such procurement contract has been reviewed and approved by the division as to the procurement contract’s compliance with subdivision (a) of this section.
(c)A gaming facility licensee shall submit to the commission quarterly minority- and women-owned business enterprise utilization reports in a form designated by the commission.
(d)A gaming facility licensee shall, upon request of the commission, provide access to other relevant documentation, including without limitation books, records and payroll records, relating to such gaming facility licensee’s operations and implementation of such gaming facility licensee’s utilization plan.
(e)Any waivers of compliance issued by the commission, or modifications to the utilization plan as set forth in section 5311.7 of this Part, shall be posted on the gaming facility licensee’s website within 10 business days of such commission decision.
(f)The commission shall promptly provide the division with copies of all documents that are submitted to it by the gaming facility licensee pursuant to this section.
9 NYCRR 5311.5 - Required notification
Source version current through Nov 15, 2021
A matched Register action is not later than the compiled-text reference date.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- Nov 15, 2021
- Related Register notice
- SGC-29-15-00014-A · Adopted rule
- Related notice published
- Sep 30, 2015
- Related notice effective date
- Sep 30, 2015
(a)Within 30 days after a gaming facility licensee determines that it will not attain an established goal, the gaming facility licensee shall submit a report to the commission that includes a detailed description of its good-faith efforts to attain the established goal or capacity, including, without limitation, the following:
(1)documentation of direct contact or negotiations with minority- and women-owned business enterprises for specific contracting or transacting opportunities. The actions taken shall be reported in a manner that includes the following items:
(i)a detailed statement of the efforts made to negotiate with minority- and women-owned business enterprises, including the following:
(a)the names, business addresses and business telephone numbers of the minority- and women-owned business enterprises contacted; and
(b)a detailed statement of the reason why prospective agreements were not reached; and
(ii)a detailed statement of the efforts, if any, to be undertaken by the gaming facility licensee expected to increase the likelihood of achieving the established goal;
(2)documentation of any advertising performed in the search for prospective minority- and women-owned business enterprises for the contract or transaction;
(3)documentation of any notifications provided to minority- and women-owned business assistance agencies for the purpose of locating prospective minority- and women-owned business enterprises for the contract or transaction; and
(4)documentation of efforts taken to research other possible areas of participation.
(b)The gaming facility licensee shall maintain adequate records of all relevant data in regard to the utilization and attempted utilization of minority- and women-owned business enterprises and shall provide full access to these records to the commission upon request.
(c)The commission shall promptly provide the division with copies of all documents that are submitted to it by the gaming facility licensee under this section.
9 NYCRR 5311.6 - Additional deficiency reporting
Source version current through Nov 15, 2021
A matched Register action is not later than the compiled-text reference date.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- Nov 15, 2021
- Related Register notice
- SGC-29-15-00014-A · Adopted rule
- Related notice published
- Sep 30, 2015
- Related notice effective date
- Sep 30, 2015
(a)The commission may require additional minority- and women-owned business enterprise documentation if a gaming facility licensee submits deficient minority- and women-owned business enterprise good-faith effort documentation.
(b)A gaming facility licensee shall respond to any request for additional documentation by submitting a proposed remedy in writing within seven business days, consistent with section 142.6(e) of Title 5 NYCRR.
9 NYCRR 5311.7 - Waiver request
Source version current through Nov 15, 2021
A matched Register action is not later than the compiled-text reference date.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- Nov 15, 2021
- Related Register notice
- SGC-29-15-00014-A · Adopted rule
- Related notice published
- Sep 30, 2015
- Related notice effective date
- Sep 30, 2015
If a deficiency is not remedied, and the gaming facility licensee is requesting a waiver of compliance with this Part:
(a)If the written remedy submitted is found to be inadequate, such failure to remedy the deficiency may be grounds for sanctioning such gaming facility licensee, including the possibility of forfeiture of such gaming facility’s license, or the commission will notify the contractor and direct the same to submit, within five business days, a request for partial or total waiver of utilization goals, consistent with section 142.6(f) of Title 5 NYCRR.
(b)The commission shall submit a copy of the deficient utilization plan to the MWBE director, along with the gaming facility licensee’s good-faith documentation, and waiver request.
(c)The commission, in consultation with the MWBE director, shall determine whether additional action can be taken to assist the gaming facility licensee to reach such gaming facility licensee’s goal or whether a formal request will be made to waive the goal.
(d)The commission may, with prior approval from the MWBE director, grant a partial or total waiver of established goal requirements only upon the submission of information supporting a waiver request by the gaming facility licensee and the verification of requisite documentation of good-faith efforts by the gaming facility licensee to justify a waiver request.
9 NYCRR 5311.8 - Failure to attain goals; penalty
Source version current through Nov 15, 2021
A matched Register action is not later than the compiled-text reference date.
Dates and status
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- Nov 15, 2021
- Related Register notice
- SGC-29-15-00014-A · Adopted rule
- Related notice published
- Sep 30, 2015
- Related notice effective date
- Sep 30, 2015
(a)A gaming facility licensee may be considered as having failed to satisfy minority- and women-owned business enterprise participation goals if the gaming facility licensee:
(1)has failed to make a good-faith effort to achieve the established goals; or
(2)fails to prepare and file accurate or timely reports as required.
(b)The commission may, in its discretion, impose a fine, after notice and hearing, upon a gaming facility licensee for failure to use good faith in attaining established goals pursuant to this Part. No fine shall exceed an amount equivalent to the value of the opportunity lost by minority- and women-owned business enterprises.