DATE: May 8, 2001

SUBJECT: Department of Transportation (DOT); Disadvantaged Business Enterprise Program

SOURCE: Federal Register, May 8, 2001, Vol. 66, No. 89, page 23208

AGENCIES: Office of the Secretary, DOT

ACTION: Proposed Rule

SYNOPSIS: DOT is proposing revisions to its Disadvantaged Business Enterprise (DBE) program in Title 49 of the Code of Federal Regulations (CFR), Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs. The changes would (1) establish a uniform reporting form and a uniform certification application form; (2) establish procedures to implement a Memorandum of Understanding (MOU) between DOT and the U.S. Small Business Administration (SBA) to streamline certification procedures for participation in SBA's 8(a) and Small Business Development (SDB) programs and DOT's DBE program; and (3) make other changes pertaining to personal net worth, retainage, the size standard, proof of ethnicity, confidentiality, proof of economic disadvantage, and DBE credit for trucking firms.

EDITOR'S NOTE: Guidance on the DBE program, including application procedures, is at http://osdbuweb.dot.gov/business/dbe/index.html.

DOT's DBE regulations are in Title 49 of the Code of Federal Regulations (CFR), Part 23, Participation by Disadvantaged Business Enterprise in Airport Concessions, and Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs. This proposed rule addresses 49 CFR Part 26.

SBA's 8(a) and SDB certification regulations are in Title 13 of the CFR, Part 124, 8(a) Business Development/Small Disadvantaged Business Status Determinations, Subpart B, Eligibility, Certification, and Protests Relating to Federal Small Disadvantaged Business Programs.

DATES: Comments on the proposed rule should be received no later than June 7, 2001.

ADDRESSES: Three copies of comments should be submitted to the Docket Clerk, Docket No. OST-2000-7639, Department of Transportation, 400 7th Street, SW., Room PL-401, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: Laura A. Aguilar, Attorney, Office of Environmental, Civil Rights, and General Law, Department of Transportation, 400 7th Street, SW., Room 10102, Washington, DC 20590; 202-366-0365 (voice), 202-366-9170 (fax), 202-755-7687 (TDD), e-mail: laura.aguilar@ost.dot.gov.

SUPPLEMENTAL INFORMATION: On February 2, 1999, DOT revised its DBE regulations to conform to the Supreme Court's decision in Adarand Constructors, Inc. v. Pena, Secretary of Transportation, et al. In the preamble to the rule change, DOT stated that it would adopt one standard reporting form to reduce the administrative burdens for recipients who receive funds from more than one DOT administration, such as the Federal Aviation Administration, the Federal Highway Administration, and Federal Transit Administration. This proposed rule would adopt as Appendix B of 41 CFR Part 26 a "Uniform Reporting Requirements Form" that would be used for DBE's reporting to any of DOT's administrations.

On November 23, 1999, DOT and SBA entered into an MOU to develop common application procedures for DOT's DBE program and SBA's 8(a) and SDB programs because the programs share many of the same certifications requirements and apply to the same basic constituents. The form, which would become Appendix F of 41 CFR Part 26, Uniform Certification Application Form, has been coordinated with SBA so it will be suitable for use by applicants to the DBE, 8(a), or SDB programs. The proposed form would have a main section with common requirements and three additional parts for DBE, 8(a), or SDB certification. The applicant would complete the main section only once, then fill out the program specific part applicable to each program for which the applicant is applying.

The proposed changes pertaining to reciprocal certifications would require recipients of DBE program funds to recognize 8(a) and SDB certifications in place of the recipient's own application. However, an applicant that is 8(a) or SDB certified would still have to meet all of the 49 CFR Part 26 requirements, such as the DOT statutory gross receipts cap, which currently is $17,420,000. (EDITOR'S NOTE: For more on "interim reciprocal certification procedures" that DOT and SBA have using until a standard form and certification process are in place, see the May 3, 2000, FEDERAL CONTRACTS DISPATCH "Department of Transportation and Small Business Administration; Update on Reciprocal Disadvantaged Business Certifications." For more on the statutory gross receipts cap, see the August 28, 2000, FEDERAL CONTRACTS DISPATCH "Department of Transportation; Inflation Adjustment of Size Limits on Participants in the Disadvantaged Business Enterprise (DBE) Program.")

The following are several other changes being proposed to DOT's DBE program regulations:

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

Copyright 2001 by Panoptic Enterprises. All Rights Reserved.

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