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DBE Laws, Policy and Guidance

This page contains the DBE program regulations, official DOT guidance, and OA documents. Also posted are archived rules, regulations, guidance, and policies on the DBE program as well as various amendments and reports. Updates on the DBE Program are posted routinely.

DBE Program Authorizing Legislation:

The DBE program was reauthorized by Congress several times since its inception; most recently in the “Fixing America’s Surface Transportation Act” or the “FAST Act,” (P.L. 114-94, Dec. 4, 2015), which funded surface transportation programs—including but not limited to Federal-aid highways—at over $305 billion for fiscal years 2016 through 2020.

Program Regulation:

The Department's current DBE and ACDBE Program Regulation is found in 49 C.F.R. Part 23 and 49 C.F.R. Part 26.

Prior Rulemaking Actions:

Over the course of the program’s history, the Department published in the Federal Register several proposed and final rulemaking actions pursuant to its rulemaking process. Read about the rulemaking process on our website

The following chronological list of DBE and ACDBE rulemaking actions serve as essential regulatory resources for understanding the mechanics of the program and the additions, changes, or rescissions the Department made to the rule text over time

1. Final Rule, November 3, 2014

The Department has issued a final rule amending its disadvantaged business enterprise (DBE) program at 49 CFR Part 26. The final rule improves DBE program implementation in three major areas. First, the rule revises the uniform certification application and reporting forms, creates a uniform personal net worth form for use by applicant owners, and collects data required by the Department’s surface transportation reauthorization, Moving Ahead for Progress in the 21st Century Act (MAP-21).  Second, the rule strengthens the certification-related program provisions, which includes adding a new section authorizing summary suspensions under specified circumstances. Third, the rule modifies several other program provisions concerning such subjects as: overall goal setting, good faith efforts, transit vehicle manufacturers, and counting for trucking companies.

2. NPRM, September 6, 2012

This notice of proposed rulemaking proposes three categories of changes to improve implementation of the DBE rule. First, the NPRM proposes revisions to personal net worth, application, and reporting forms. Second, the NPRM proposes modifications to certification-related provisions of the rule. Third, 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.

3. Final Rule, June 20, 2012

This final rule amends the Airport Concessions Disadvantaged Business Enterprise (ACDBE) regulation to conform it in several respects to the DBE rule for highway, transit, and airport financial assistance programs. This rule also amends small business size limits to ensure that the opportunity for small businesses to participate in the ACDBE program remains unchanged after taking inflation into account. This final rule also provides an inflationary adjustment in the personal net worth cap for owners of businesses seeking to participate in DOT’s ACDBE program and suspends, until further notice, future use of the exemption of up to $3 million in an owner’s assets used as collateral for financing a concession.

4. Final Rule, January 28, 2011

This rule improves the administration of the DBE program by increasing accountability for recipients with respect to meeting overall goals, modifying and updating certification requirements, adjusting the personal net worth threshold for inflation, providing for expedited interstate certification, adding provisions to foster small business participation, improving post-award oversight, and addressing other issues.

5. NPRM, May 10, 2010

This notice of proposed rulemaking would propose to improve the administration of the DBE program by increasing accountability for recipients with respect to good faith efforts to meet overall goals, modifying and updating certification requirements, adjusting the personal net worth (PNW) threshold for inflation, providing for expedited interstate certification, adding provisions to foster small business participation and improve post-award oversight, and addressing other issues.

6. Final Rule, April 1, 2010

This final rule removed the ‘‘sunset’’ provision from its rule governing the ACDBE program. The revised rule instead provides reviewing the program to ensure that it is being effectively implemented.

7. NPRM, April 8, 2009

This advance notice of proposed rulemaking provides interested parties with the opportunity to comment on five matters of interest to participants in the DBE program. The first concerns counting of items obtained by a DBE subcontractor from its prime contractor. The second concerns ways of encouraging ‘‘unbundling’’ of contracts to facilitate participation by small businesses, including DBEs. The third is a request for comments on potential improvements to the DBE application form, and the fourth asks for suggestions related to program oversight. The fifth concerns potential regulatory action to facilitate certification for firms seeking to work as DBEs in more than one state. The sixth concerns additional limitations on the discretion of prime contractors to terminate DBEs for convenience, once the prime contractor had committed to using the DBE as part of its showing of good faith efforts.

8. ANPRM, April 8, 2009

This advance notice of proposed rulemaking provides interested parties with the opportunity to comment on five matters of interest to participants in the DBE program. The first concerns counting of items obtained by a DBE subcontractor from its prime contractor. The second concerns ways of encouraging ‘‘unbundling’’ of contracts to facilitate participation by small businesses, including DBEs. The third is a request for comments on potential improvements to the DBE application form, and the fourth asks for suggestions related to program oversight. The fifth concerns potential regulatory action to facilitate certification for firms seeking to work as DBEs in more than one state. The sixth concerns additional limitations on the discretion of prime contractors to terminate DBEs for convenience, once the prime contractor had committed to using the DBE as part of its showing of good faith efforts.

9. Final Rule, April 3, 2009

Under the statutes governing the Department’s Disadvantaged Business Enterprise (DBE) Program, firms are not considered small business concerns and are therefore ineligible as DBEs once their average annual receipts over the preceding three fiscal years reach specified dollar limits. The Department of Transportation is amending the size limits or gross receipts caps to ensure that the opportunity of small businesses to participate in the Department’s DBE programs remains unchanged after taking inflation into account. This final rule provides 2009 inflation adjustment of size limits on small businesses participating in the DOT’s Disadvantaged Business Enterprise programs.

10. Final Rule, April 2, 2007

This document adjusts the dollar limits and size limits used to define small businesses for the Department of Transportation’s Airport Concessions Disadvantaged Business Enterprise (ACDBE) program. The Department of Transportation amends these size limits in order to ensure that the opportunity of small businesses to participate in the ACDBE program remains unchanged after taking inflation into account. This document, as required by statute, also adjusts the dollar limits used to define small businesses for the Department of Transportation’s Disadvantaged Business Enterprise (DBE) program, which applies to State and local highway, transit, and airport recipients of DOT financial assistance. This document also corrects a reference error in a previous final rule. Finally, this document makes minor changes to the language of a previous rule in order to accurately explain the role of administrative guidance material.

11. SNPRM, March 22, 2005

This SNPRM seeks further comment on the issue of business size standards for the Department of Transportation’s airport concession disadvantaged business enterprise (ACDBE) program. It also requests comment on issues such as additional measures to combat fraud and abuse in the program and to provide additional flexibility for airports in implementing the program.

12. Final Rule, March 22, 2005

This rule revises and updates the Department’s regulation concerning participation by airport concessionaire disadvantaged business enterprises (ACDBEs) in the concessions activities of airports receiving Federal financial assistance from the airport improvement program (AIP) of the Federal Aviation Administration (FAA). It makes the ACDBE concessions rule parallel in many important respects to the Department’s DBE regulation for Federally-assisted contracts. It also addresses issues such as goal-setting, personal net worth and business size standards, and counting ACDBE participation by car rental companies.

13. Final Rule, June 16, 2003

This final rule revises the Department of Transportation’s (DOT or Department) regulations for its Disadvantaged Business Enterprise (DBE) program. It makes several changes to the DBE program, concerning such subjects as uniform application and reporting forms; implementing a memorandum of understanding (MOU) with the Small Business Administration (SBA); substantive amendments to provisions concerning personal net worth, retainage, size standard, proof of ethnicity, confidentiality, proof of economic disadvantage, DBE credit for trucking firms, and eligibility of firms owned by Alaska Native Corporations (ANCs); and clarifications concerning multi-year project goals and the use of the new North American Industrial Classification System (‘‘NAICS’’). In addition, this document addresses comments received in response to both an interim final rule (IFR) issued in November 2000 and a notice of proposed rulemaking (NPRM) issued in May 2001 (RIN 2105–AC88).

14. NPRM, May 8, 2001

The Department of Transportation (DOT or the Department) is proposing revisions to the Department’s regulations for its Disadvantaged Business Enterprise (DBE) program (49 CFR part 26). In its final DBE rule the Department reserved publication of a uniform reporting form and a uniform certification application form for a later date. This document proposes those forms. In addition, this document proposes implementation procedures for a Memorandum of Understanding (MOU) between DOT and the U.S. Small Business Administration (SBA). The MOU streamlines certification procedures for participation in SBA’s 8(a) Business Development (8(a) BD) and Small Disadvantaged Business (SDB) programs, and DOT’s DBE program for small and disadvantaged businesses. Finally, this document proposes substantive changes to several provisions, including: Personal net worth, retainage, the size standard, proof of ethnicity, confidentiality, proof of economic disadvantage, and DBE credit for trucking firms.

15. Notices August 29, 2000

Under the statutes governing the Department’s Disadvantaged Business Enterprise (DBE) Program, firms are not considered small businesses concerns and are therefore ineligible as DBEs once their average annual receipts over the preceding three fiscal years reach specified dollar limits. These statutes, and the DOT rule implementing them (49 CFR part 26), provide that the Secretary may adjust these specified dollar limits for inflation. Consequently, this notice revises the limits established by section 1101(b)(2)(A) of the Transportation Equity Act for the 21st Century (TEA– 21), Public Law 105 178, July 22, 1998 as well as the Airport and Airway Safety, Capacity, Noise Improvement and Intermodal Transportation Act of 1992, Public Law 102–581, October 31, 1992, 49 U.S.C. 47113 (formerly section 505(d) of the Airport and Airway Improvement Act of 1982, as amended (AAIA)), Public Law 97–248, Title V, September 3, 1982. The Department has determined that the appropriate cap for all portions of the DBE program (airport, highway and transit) is now $17,420,000.

16. NPRM September 8, 2000

In May 1997, the Department issued a supplemental notice of proposed rulemaking (SNPRM) to revise its disadvantaged business enterprise (DBE) regulation. The SNPRM included proposals for revising the airport concessions portion of the DBE program. When the Department, in February 1999, issued the final rule based on the SNPRM, we did not publish a final version of the airport concessions proposal. This SNPRM seeks comments on an airport concessions subpart to part 26 that takes into account comments on the May 1997 SNPRM, adapts provisions of the rest of part 26 to the concessions context, and proposes options for provisions affecting car rental operations at airports. These options are based in part on a recent memorandum of understanding between the American Car Rental Association and the Airport Minority Advisory Council making recommendations to the Department on this aspect of the rulemaking.

17. Interim Final Rule, November 15, 2000

This interim final rule changes threshold requirements for Federal Transit Administration recipients and Federal Aviation Administration recipients to establish DBE programs and submit overall goals. In addition, this document corrects and clarifies misleading language in the DBE final rule. This correction document adds examples of ways to collect information required for bidders lists. This document adds language clarifying that in order to verify whether a DBE firm actually performed the work they were committed, both commitments and attainments must be tracked and reported. Finally, this document corrects potentially misleading language regarding evidence that must be considered when setting overall goals.

18. Final Rule June 28, 1999

In its final disadvantaged business enterprise (DBE) rule, the Department intended to ensure the confidentiality of personal financial information submitted to recipients by owners of DBE firms. The Department inadvertently omitted the regulatory text language on this point. This correction document remedies this omission. In addition, this document corrects minor omissions concerning the threshold for Federal Transit Administration recipients to establish DBE programs and a requirement for transit vehicle manufacturers to have DBE programs, removes a potentially confusing word from the rule’s provisions concerning DOT review of recipients’ overall goals, clarifies language concerning the certification and personal net worth of airport concessionaires and others, and clarifies that a lease is viewed as a contract for purposes of the rule.

19. Final Rule, February 2, 1999

This final rule revises the Department of Transportation’s regulations for its disadvantaged business enterprise (DBE) program. The DBE program is intended to remedy past and current discrimination against disadvantaged business enterprises, ensure a ‘‘level playing field’’ and foster equal opportunity in DOT-assisted contracts, improve the flexibility and efficiency of the DBE program, and reduce burdens on small businesses. This final rule replaces the former DBE regulation, which now contains only the rules for the separate DBE program for airport concessions, with a new regulation. The new regulation reflects President Clinton’s policy to mend, not end, affirmative action programs. It modifies the Department’s DBE program in light of developments in case law requiring ‘‘narrow tailoring’’ of such programs and last year’s Congressional debate concerning the continuation of the DBE program. It responds to comments on the Department’s December 1992 notice of proposed rulemaking (NPRM) and its May 1997 supplemental notice of proposed rulemaking (SNPRM).

20. SNPRM, May 30, 1997

This document proposes revisions of the Department of Transportation’s regulations for its disadvantaged business enterprise (DBE) program. The notice responds to comments on notices of proposed rulemaking issued December 1992 and October 1993 and also proposes responses to the Supreme Court’s decision in Adarand v. Pen˜ a. It would replace the current DBE rule (49 CFR Part 23) with a new rule (49 CFR Part 26). The proposed changes in the latter category would modify the overall goal, contract goal, and good-faith efforts provisions of the rule, as well as add provisions concerning diversification in the DBE program and provide greater flexibility to recipients. A final rule based on this SNPRM would replace the existing DBE rule in its entirety.

21. NPRM, October 6, 1993

This NPRM proposes to implement recent changes to the Airport and Airway Improvement Act (AAIA) of 1982, as amended. The proposed rule would allow airport sponsors to count new forms of disadvantaged business enterprise (DBE) participation toward the overall goals of a DBE concession plan. These new forms include purchases from DBE’s of goods and services used in the operation of a concession, as well as management contracts and subcontracts with DBE’s. The NPRM would amend the DOT’s DBE regulations to make these and several other changes.

22. Final Rule, April 30, 1992

The Department of Transportation (DOT) is issuing a final rule to implement a provision in the Airport and Airway Improvement Act of 1982, as amended in 1987 (AAIA). The final rule establishes requirements for the participation of disadvantaged business enterprises (DBE) in airport concessions. It also amends the existing DOT DBE regulation.

23. Final Rule, July 21, 1983

This regulation implements section 105(f) of the Surface Transportation Assistance Act of 1982, which provides that, except to the extent that the Secretary determines otherwise, not less than ten percent of the amounts authorized to be appropriated under the Act shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals. The regulation adds a new Subpart D to the Department’s existing minority business enterprise regulation. The Department also requests comments on §23.67 of the final rule.

Updated: Thursday, September 6, 2018
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