USDOT issues interim final rule, guidance regarding DBE program

USDOT issues interim final rule, guidance regarding DBE program

USDOT and Justice Department conclude race- and sex-based presumptions are unconstitutional

The U.S. Department of Transportation (USDOT) this morning published an interim final rule and guidance related to the status of the Disadvantaged Business Enterprise (DBE) Program, which the U.S. Department of Justice (DOJ) considers inconsistent with equal protection under the Fifth Amendment of the Constitution.

The rule by USDOT appeared in the Federal Register this morning with an immediate effective date. The rule provides a 31-day comment period that ends Nov. 3.

Comments should be identified by docket number DOT-OST-2025-0897 and submitted one of three ways:

• Federal Rulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments.
• Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.
• Hand Delivery: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m. ET, Monday through Friday, except federal holidays. (NOTE: With the current federal government shutdown, confirm the office is open regular hours before attempting hand delivery.)

USDOT and DOJ reviewed a Sept. 23, 2024 ruling by the U.S. District Court for the Eastern District of Kentucky that “the DBE program’s use of race- and sex-based presumptions” of being socially and economically disadvantaged “likely does not comply with the Constitution’s promise of equal protection under the law,” according to a Sept. 30 USDOT memo detailing the rule.

USDOT and DOJ, “consistent with the ruling of the District Court, have determined that the DBE program’s race- and sex-based presumptions do not comply with the Fifth Amendment’s Due Process Clause, which prohibits the Federal Government from depriving individuals of the equal protection of the laws,” the Sept. 30 memo states.

The memo also notes that, “On June 25, 2025, the Solicitor General wrote to the Speaker of the House, consistent with 28 U.S.C. § 530D, to advise the Speaker that DOJ had concluded that the DBE program’s presumptions violate the Constitution, that DOJ would no longer defend the presumptions in court, and that DOJ had taken that position in ongoing litigation. DOT agrees with and adopts the Solicitor General’s analysis.”

USDOT’s issuance of an interim final rule removes the presumptions from the DBE program regulations as a result of that position.

USDOT issued guidance for recipients of its highway, transit and airport funding. The guidance notes that race- and sex-based presumptions are removed from the definition of “socially and economically disadvantaged individual” and that applicants will be evaluated on a case-by-case basis for the Unified Certification Programs (UCP) based on five criteria.

All current DBEs must be re-evalauted to see if they meet the new certification standards or must be decertified.

Today’s listing in the Federal Register is here.

The Sept. 30 memorandum from the USDOT is here.