I 113th CONGRESS 2d Session H. R. 4439 IN THE HOUSE OF REPRESENTATIVES April 9, 2014 Ms. Brown of Florida introduced the following bill; which was referred to the Committee on Transportation and Infrastructure , and in addition to the Committee on Small Business , for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To ensure that minority-owned and women-owned businesses have a full and fair opportunity to compete in covered rail projects and contracts, and that the Federal Government does not subsidize discrimination in covered rail projects.

1. Disadvantaged business enterprise program (a) Findings Congress finds the following: (1) While significant progress has occurred due to the enactment of a disadvantaged business enterprise program for highways and mass transit, including commuter rail passenger transportation, discrimination and related barriers continue to pose significant obstacles for minority-owned and women-owned businesses seeking to do business in federally assisted surface transportation-related markets, including intercity rail passenger transportation markets. This continuing discrimination warrants the establishment of the disadvantaged business enterprise program under this section. (2) Discrimination poses serious barriers to the full and fair participation of minority and women business owners, including African-Americans, Hispanic-Americans, Asian-Americans, and Native Americans in federally assisted surface transportation-related projects and contracts, including intercity rail passenger transportation projects and contracts. (3) Discrimination impacts minority and women business owners in every geographic region of the United States and throughout all of the surface transportation-related industries, including intercity rail passenger transportation industries. (4) Congress has reviewed evidence of discrimination against minority and women business owners throughout the transportation sector, including— (A) statistical analyses demonstrating significant disparities in the utilization of minority-owned and women-owned businesses in federally and locally funded transportation contracting; (B) statistical analyses of private sector disparities in business success by minority-owned and women-owned businesses in transportation industries; (C) research compiling anecdotal reports of discrimination against individual minority and women business owners; (D) individual reports of discrimination against minority and women business owners and the organizations and individuals who represent minority and women business owners; (E) analyses demonstrating significant reductions in the participation of minority and women businesses in jurisdictions that have reduced or eliminated their minority-owned and women-owned business programs; (F) statistical analyses showing significant disparities in the credit available to minority-owned and women-owned businesses; (G) research and statistical analyses demonstrating how discrimination negatively impacts firm formation, growth, and success; (H) experience of State departments of transportation and localities demonstrating that race-neutral and gender-neutral efforts alone are insufficient to remedy discrimination; and (I) other qualitative and quantitative evidence of discrimination against minority-owned and women-owned businesses in the transportation sector. (5) Congress has received and reviewed compelling evidence of discrimination from many different sources, including congressional hearings and round­ta­bles, studies, scientific reports, reports issued by public and private agencies, news stories, reports of discrimination by organizations and individuals, and discrimination lawsuits. (6) All of this evidence applies not only to highway and mass transportation programs, but also to rail programs, providing a compelling need for the establishment of the disadvantaged business enterprise program under this section to address race and gender discrimination in intercity rail passenger transportation. (b) Program There is established a disadvantaged business enterprise program for the Federal Railroad Administration to ensure that disadvantaged business enterprises have a full and fair opportunity to compete in covered rail projects and to ensure that the Federal Government does not subsidize discrimination in covered rail projects. (c) Amounts for disadvantaged business enterprises Except to the extent that the Secretary of Transportation determines otherwise, not less than 10 percent of the amounts made available through a grant, contract, loan, or other financing instrument for any covered rail project shall be expended through disadvantaged business enterprises. (d) Annual listing of disadvantaged business enterprises The unified certification program established under subsection (e) shall annually survey and compile a list of disadvantaged business enterprises and their location, and shall include an indication of the percentage of such enterprises which are controlled by women, by socially and economically disadvantaged individuals (other than women), and by individuals who are women and are otherwise socially and economically disadvantaged individuals. (e) Uniform certification For purposes of carrying out this section, the Secretary of Transportation shall establish minimum uniform criteria to use in certifying whether a concern qualifies as a small business concern. The minimum uniform criteria shall include on-site visits, personal interviews with personnel, issuance or inspection of licenses, analyses of stock ownership, listing of equipment, analyses of bonding capacity, listing of work completed, examination of the resume of principal owners, analyses of financial capacity, and analyses of the type of work preferred. Federal Railroad Administration recipients of funds subject to this section must participate in unified certification program approved by the Secretary. (f) Reporting The Secretary of Transportation shall establish minimum requirements for covered rail project Federal funding recipients to report to the Secretary— (1) information concerning minority-owned and women-owned business awards, commitments, and achievements; and (2) such other information as the Secretary determines to be appropriate for the proper monitoring of the disadvantaged business enterprise program under this section. (g) Compliance with court orders Nothing in this section limits the eligibility of an entity or person to receive funds if the entity or person is prevented, in whole or in part, from complying with subsection (c) because a Federal court issues a final order in which the court finds that a requirement or the implementation of subsection (c) is unconstitutional. (h) Definitions In this section, the following definitions apply: (1) Commuter rail passenger transportation and intercity rail passenger transportation The terms commuter rail passenger transportation and intercity rail passenger transportation have the meaning given those terms in section 24102 of title 49, United States Code. (2) Covered rail project The term covered rail project means any railroad project that is carried out or is planned to be carried out with the use of Federal funds administered by the Federal Railroad Administration through a grant, contract, loan, or other financing instrument. (3) Disadvantaged business enterprise The term disadvantaged business enterprise means a small business concern owned by socially and economically disadvantaged individuals. (4) Small business concern The term small business concern has the meaning given that term under section 3 of the Small Business Act ( 15 U.S.C. 632 ), except that the term shall not include any concern or group of concerns controlled by the same socially and economically disadvantaged individual or individuals that have average annual gross receipts over the preceding 3 fiscal years in excess of $22,410,000, as adjusted annually by the Secretary of Transportation for inflation. (5) Socially and economically disadvantaged individuals The term socially and economically disadvantaged individuals has the meaning given that term under section 8(d) of the Small Business Act ( 15 U.S.C. 637(d) ) and relevant subcontracting regulations issued pursuant to that Act, except that women shall be presumed to be socially and economically disadvantaged individuals for purposes of this section.