PURPOSE: This rule advises of the legal effect of a USDOT DBE certification appeal Transportation Commission

upon MoDOT, and upon the other parties involved.

1. (1) United States Department of Transportation (USDOT) Appeal Determination Binding Upon Missouri Department of Transportation (MoDOT). If an appeal of a MoDOT disadvantaged business enterprise (DBE) certification action is taken to USDOT under 49 CFR section 26.89, the resulting USDOT determination is binding upon MoDOT, but not necessarily other recipients; under 49 CFR section 26.91(a). MoDOT shall then take any actions required by 49 CFR section 26.91(b).
2. (2) USDOT Appeal Determination Not Binding Upon MoDOT. If an appeal of another USDOT recipient’s DBE certification removal or denial action is taken to USDOT under 49 CFR section 26.89 and USDOT upholds that other recipient’s denial of certification or removal of DBE eligibility, MoDOT is not governed by that determination, but MoDOT may commence a proceeding to remove the firm’s DBE eligibility with MoDOT under 49 CFR section 26.87, as provided in 49 CFR section 26.91(c). In such a proceeding, MoDOT shall not remove the firm’s eligibility until a proceeding under rule 7 CSR 10-8.091 is concluded, and the hearing officer determines in that proceeding that the firm’s eligibility should be removed. Likewise, if USDOT has reversed the decision of another recipient to deny certification or remove a firm’s eligibility, then under 49 CFR section 26.91(c) MoDOT shall take that USDOT determination into consideration, but MoDOT is not required to certify the same firm based upon that USDOT decision.
3. (3) Judicial Review of a USDOT Determination. Judicial review of a USDOT appeal determination of a denial of DBE certification, or of the removal of a firm’s DBE eligibility, whether that USDOT appeal is from MoDOT or another recipient’s determination, is not subject to the provisions of Chapter 536, RSMo, and it does not lie in the state courts of Missouri.

AUTHORITY: section 226.150, RSMo 1994*; Title 49 Code of Federal Regulations part 26; section 1101(b) of the Transportation Equity Act for the 21st Century (TEA-21), Public Law 105-178, 112 Stat. 107, 113; and MoDOT’s approved DBE Program submittals to the U.S. Department of Transportation. Emergency rule filed May 10, 2000, effective May 20, 2000, expired Nov. 6, 2000. Original rule filed May 10, 2000, effective Nov. 30, 2000. *Original authority: 226.150, RSMo 1939, amended 1977.