AASHTO Journal - AASHTO Comments on DBE/ACDBE Interim Final Rule

The American Association of State Highway and Transportation Officials recently commented on the Disadvantaged Business Enterprise (DBE) and Disadvantaged Business Enterprise in Airport Concessions Program (ACDBE) interim final rule issued by the U.S. Department of Transportation on October 3.

[Above photo by USDOT]

In a letter sent to the USDOT on November 3, AASHTO appreciated the agency’s issuance of a Frequently Asked Questions or FAQ guidance document, which has “been helpful in clarifying certain aspects” of the interim final rule.

However, issuing the DBE/ACDBE program modifications as an interim final rule, “without the opportunity for public comment prior to its effective date,” presents challenges for state departments of transportation, AASHTO said – largely because state DOTs are often the lead state DBE certifying agency.

“Not having the opportunity to provide comments before the rule takes effect limits the ability of state DOTs and other stakeholders to provide valuable input,” AASHTO explained in its letter.

“The typical process of issuance of a notice of proposed rulemaking with a sufficient public comment period, agency review of comments, consideration of revisions to the proposed rule, and response to public comments before finalization of the rule supports more seamless implementation, as well as a clearer stakeholder understanding,” the organization added.

Additionally, making the interim final rule effective immediately upon publication “limits the ability of state DOTs to adequately prepare for program changes required to ensure compliance,” AASHTO stressed.

“With no transition period, state DOTs have no time to develop new DBE recertification processes, update documentation, train staff, and ensure consistent application of new processes,” the group pointed out. “State DOTs are currently reviewing the new recertification requirements to update existing programs and processes, train staff, and coordinate with contractors to ensure compliance with the new requirements. [This] program shift requires a lengthy and burdensome process.”