On September 6, 2012, the U.S. Department of Transportation issued a Notice of Proposed Rulemaking (NPRM) that proposes three categories of changes to DOT’s disadvantaged business enterprise (DBE) rule. Comments to the proposed rule must be received by November 5, 2012.  The proposed improvements include:

  1. The NPRM proposes revisions to personal net worth, application, and reporting forms.
  2. The NPRM proposes modifications to certification-related provisions of the rule.
  3. The NPRM would modify several other provisions of the rule, concerning such subjects as good faith efforts, transit vehicle manufacturers and counting of trucking companies.

History.  In January 2011, the DOT published a final rule that made a number of important policy changes to its DBE program.  Some of those original changes included: (a) greater accountability for recipients with respect to meeting overall goals; (b) adjusting for inflation the personal net worth cap applicable to owners of DBE firms to $1.32 million; (c) requiring greater monitoring of contracts by recipients; (d) adding a small business element to recipients’ DBE programs; and (e) facilitating interstate certification.

Reason for New Rule.  In order not to delay the above policy initiatives in January 2011, the rulemaking did not include some of the more technical, program improvements. The improvements covered by the September 6, 2012 NPRM involve modifications to the business forms of the program, changes to certification-related provisions in response to eligibility concerns that have come to DOT’s  attention, and modifications to a variety of other program provisions.

MAP-21 Applicability.  If you are following the transportation industry, then you know that on July 6, 2012, the Moving Ahead for Progress in the 21st Century Act (MAP-21) was enacted.  Funding surface transportation programs at over $105 billion for fiscal years 2013 and 2014, MAP-21 is the first long-term highway authorization enacted since 2005.  According to the NPRM, the DOT believes that MAP-21’s reauthorization is intended to maintain the status quo of the DBE program and does not include any significant substantive changes to the program.

What do with this information?  If you have time, then you will want to print out a copy of the NPRM and read the 75-page proposed rule.  Then, if you want to send me some comments to consider, or if you have any questions about the DBE program and the proposed rule change, please send me an email.  Over the next few weeks, I will be digesting the full impact of the rule and will outline my comments as part of my DBE presentation at ARTBA’s 4th Annual Transportation Construction and Regulatory Forum on October 24-25, 2012 in Washington, DC. (You can register online if you want to go.)