| Approval of DBE Program Changes |
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- Under 49 CFR § 26.21(b)(2), STAs are not
required to submit to FHWA regular updates of their program unless there are significant
changes in the program. As a guiding principle, a "significant change" is any
change that is likely to affect an important aspect of the DBE program if implemented. If
there is a doubt as to whether a proposed change would be considered significant, the
Division Office is encouraged to consult FHWA Office of Civil Rights (HCR).
- If no significant changes occured to the
STA's DBE program since it was last approved by the FHWA, no further action is required
other than the submission of the STA's overall goal setting process for FY 2006. If the
STA has made or makes a significant change to its DBE program that has not been approved
by FHWA, the STA must submit a written explanation of the change along with the revised
program document to the Division Office for approval. The Division Office shall submit the
proposed revision to HCR for concurrence. The HCR shall coordinate the review by other
appropriate offices in FHWA and US DOT. Once notified by the HCR of its concurrence, the
Division Administrator make take final action to approve the STA's revised DBE program.
- The US DOT promulgated a final rule on June
16, 2003, revising a number of provisions in the DBE program regulations. Recently, US DOT
issued additional Questions and Answers
(Q&As) affecting eight different program areas. It is expected that most, if not all,
STAs will need to update their DBE program to conform to the 2003 rule change and perhaps
the Q&As issued by US DOT. The Division Office should work the STA to ensure its DBE
program fully complies with 49 CFR Part 26. If significant changes to the approved program
must be made, the Division Office shall submit the proposed revision(s) to the HCR for
concurrence in accordance with the process described above. [The next sentence is a typo. Editor>>] Some of the program must be made, the Division
Office shall submit the proposed revision(s) to the HCR for concurrence in accordance with
the process described above. [<<end
typo.] Some of the program
changes required or authorized by the 2003 amendments that are considered significant, and
consequently subject to approval, include, but are not limited to, program modifications
that deal with proper payment, retainage, size standards, trucking, application
supplementation, and implementation of the Memorandum of Understanding between US DOT and
the Small Business Administration.
- DBE program changes should not delay action
on the STA's annual goal submission.
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| Overall DBE Goal Setting |
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- Under 49 CFR § 26.45(f), the STA is
required to submit its overall annual goal with supporting documentation to the
appropriate FHWA Division Office no later than August 1st. Thus any STA that has yet to
submit its goal should be admonished to do so as quickly as possible.
- The STA must submit with its proposed
overall goal a description of the goal setting processed followed in setting its FY 2006
goal. With its submission, the STA must report on the information and evidence relied upon
to calculate its goal in accordance with 49 CFR § 26.45(f)(3). Also, the analysis and
calculation used by the STA in projecting the proportion of the goal it expects to meet
through race-neutral and race-conscious measures shall be included with the submission.
- STAs that are located within the Ninth
Federal Judicial Court - Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada,
Oregon, and Washington - are subject to additional standards set by the Court in the Western States Paving Co v. State of Washington
Department of Transportation, 407 F.3d 983 (9th Cir. 2005). In addition to the above,
the following applies:
| 1. |
If
the STA has not submitted its FY 2006 DBE goal, it may be given a reasonable period of
time (30 - 60 days) to do so. |
| 2. |
If
the DBE goal estabilished by the STA indicates that a portion of the goal will be met
using race-conscious measures, the submission must describe the evidence of discrimination
or its effects relied upon by the STA to support the implementation of race-conscious
measures. If warranted by the evidence, the STA also may need to request a waiver of the
prohibition on the use of group specific goals. If this information is not in the
submission, the STA should be advised to revise its submission to include a description of
the evidence and to indicate whether a waiver is needed to implement goals of limited
application. |
| 3. |
If
the STA determines that it needs time to assess whether it has sufficient evidence of
discrimination or its effects, the STA must revise its submission to request approval to
implement a wholly race-neutral program while it undertakes this assessment. This may
involve commissioning a disparity study or availability study sufficient to meet the
standard set by the Ninth Circuit Court of Appeals. |
| 4. |
A
STA that moves to a wholly race-neutral program as a result of the Western States Paving
decision must commit to conduct the required analysis and establish a schedule with
milestones for completion to obtain approval of its DBE goal submission. |
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- The Division Administrator is delegated the
authority to review and approve the goal setting process submitted by the STA. The
Division Office is required to obtain a legal sufficiency review of its decision document before the formal
approval letter accompanied by the decision document is sent to the STA. The draft
decision document should be forwarded to the appropriate Chief Counsel's staff located in
the Resource Centers. However, if STA's overall goal setting is subject to the following
circumstances, the Division Office must withhold final action pending concurrence by the
HCR. The circumstances that require further review by Headquarters, as determined by HCR,
are:
| 1. |
The
STA substantially changes its goal setting methodology and/or projected race-neutral and
race-conscious breakdown from the previous Fiscal Year; |
| 2. |
There
was significant controversy occurring during the goal setting process that raises
questions about the evidence relied upon to support the goal established by the STA; |
| 3. |
The
DBE program is the subject of, or there is a substantial risk of, a legal challenge; or |
| 4. |
The
STA is located within the Ninth Federal Judicial Circuit. |
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- Approval by the Division Administrator shall
be accompanied by a document that explains the basis for the approval. A sample decision document and approval letter has been provided
for your use.
- The Division Administrator is responsible
for advising the STA that completion of the highway program goal setting process does not
relieve the STA from working with FTA and FAA on a goal setting process for programs
funded by those agencies.
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| Review Process at Headquarters |
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- Changes in the DBE program and/or overall
goal setting documentation required to be sent to Headquarters shall be sent to HCR and
HCC. The Division Office shall indicate whether it is prepared to approve the STA's
program changes and/or overall goal submission.
- If so, the Division Office shall include a
draft decision document in the package sent to HCR and HCC. The HCR shall monitor
Headquarters' review process for timeliness and will officially notify the Division Office
when the process is completed. The Division Administrator may not take any formal approval
action until receipt of this official notification. Every effort will be made to complete
this process within 30-60 days of receipt of a well-documented explanation by the STA of
the goal setting process.
- HCR will coordinate all STA submissions with
the HCC at Headquarters. For those matters in litigation, or at risk of litigation, HCC
will work with US DOT's Office of General Counsel (OGC) by providing it with a copy of
STA's program changes and/or goal submission, acting as an intermediary in resolving any
outstanding issues and obtaining OGC's advice on FHWA's intended action to approve the
STA's program revision and/or goal setting process for FY 2006. Once this process has been
satisfactorily competed, the Division Office will be notified of HCR's concurrence.
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| Questions |
| The Offices of Civil Rights and Chief Counsel are available to respond to
questions from Division Offices during this process. |
This page last modified on January
23, 2006
Last known link to the original FHWA
memo:
http://www.fhwa.dot.gov/civilrights/dbe_memo_a1.htm |
