New USDOT DBE regs on defining ethnicity of kid with Norwegian ma & pa born in Chile LIGHT READING

September 10, 2012
By Peter Samuel

Your federal gas tax money at work!  USDOT has just filed in the Federal Register proposed changes in the definition of disadvantaged business enterprises (DBE) required by US law to get a fair shake in contracting and hires any place federal $s are being dispensed, CORRECTION, invested.

The USDOT filing called "Program Implementation Modifications" (PIMs) is trying to gain proper treatment for so-called minority owned businesses and it is tackling the vexing problems of what is a minority, what is ownership and what constitutes giving adequate treatment. Surprise, surprise: there are people out there trying to game the system.

Massachusetts senate candidate Elizabeth Warren was given minority recognition citing forebears in the Kiowa tribe of Oklahoma to get tenure at Harvard, but is now accused of "ethnic fraud" by tribe members.

Guarding against this is no simple matter.

This PIMs filing on DBE regs is the length of a book: 30,797 words according to our word count app. We don't claim to have read the full DBE PIM book but a couple of important proposed changes we stumbled on with the assistance of a commentary from the estimable Center for Equal Opportunity:

There aren't to be "American Indians" any more. Done, finished, dumped. They'll henceforth be "enrolled members of a federally or state-recognized Indian tribe" (EMOFOSRITs.) There must be lucre in federal or state recognition of your tribe and more lucre in enrollment in that tribe.

And in future being born in Chile won't, based on birth alone, make you a genuine Hispanic if your parents were, say, Norwegian, USDOT proposes. Maybe in that case you have to prove to the satisfaction of USDOT's DBE chief that your Norwegian is really bad, better still non-existent, to be classed a DBE Hispanic?

Plus they are going to take more account of grandparents too.

Also note that Eskimos and Aleuts will henceforth get dumped in the same bucket (along with Sarah Palin?) as "Alaskan Natives."

Plus you must keep all those old records in case the Feds need em.

Here's a taste of the proposed new USDOT DBE regulations:

Sec.  26.1 What are the objectives of this part?

    The NPRM would add a new paragraph to this section, saying that a
purpose of the rule is to promote the use of all types of DBEs. This
language is intended to emphasize that the DBE program is not just
about construction. Other types of work, including, but not limited to,
professional services, supplies etc., are also appropriate for DBE
participation.

Sec.  26.5 Definitions
...    Additionally, we propose to modify the existing definition of a
``socially and economically disadvantaged individual'' to align with
SBA principles. Most importantly, the definition specifically states
that being born in a country does not, by itself, suffice to make the
birth country and individual's country of origin for purposes of being
included within a designated group. For example, a child born of
Norwegian parents in Chile would not, based on that fact alone, be
regarded as ``Hispanic'' under the definition. Minor technical changes
to references within the existing definitions are also proposed.
    We also note that the proposed definition of ``immediate family
member'' would include a wider group of relatives, and we seek comment
on the scope of that proposed change (e.g., Is it appropriate to
include grandparents? Should grandchildren also be included?). The
effect of the change is to broaden the impact of provisions of the rule
that call for a higher burden of proof concerning ownership and control
when transfers of interests in a company are made to family members.
    The NPRM would amend the definition of ``Native Americans'' to be
consistent with a February 2011 change in SBA's definition of the term.
The term ``Alaska native'' would replace ``Eskimos and Aleuts,'' and
the phrase ``enrolled members of a federally or state-recognized Indian
tribe'' would replace ``American Indians.''

Sec.  26.11 What records do recipients keep and report?

    The NPRM proposes two new provisions, both related to
certification. The first is a record retention requirement for
certification-related records. These are the kind of records that
recipients and UCPs normally keep, but we have heard concerns that some
recipients may be discarding records that may still be relevant for
certification review purposes.

[[Page 54961]]

http://www.gpo.gov/fdsys/pkg/FR-2012-09-06/html/2012-21231.htm

more on tribes from USDOT:

http://www.dot.gov/tribal/

TOLLROADSnews 2012-09-10

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