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Office of Civil Rights | ![]() |
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The attached guidance outlines the process for the Federal Highway Administration's (FHWA) review and approval of the annual overall disadvantaged business enterprise (DBE) goal submissions made by state transportation agencies (STA) to implement their DBE program. The DBE goal submission includes the STA's goal setting methodology and its race- and gender-neutral (hereafter race-neutral) and race- and gender-conscious (hereafter race-conscious) projections for meeting the annual goal. If a STA has not submitted its FY 2006 DBE goal (which was due on August 1st), it should be instructed to do so as soon as possible and notified that its failure to comply by a specified date may result in a finding of noncompliance. Except for the STAs that are in the Ninth Circuit (identified below), no further extensions of the time to submit the FY 2006 DBE goal should be granted. As in the past, DBE goal submissions that meet specified criteria require Headquarters concurrence before the division administrator gives final approval. The Office of Civil Rights (HCR) in consultation with the Office of Chief Counsel will conduct the review by Headquarters. We have added a new class of submissions that require Headquarters review. All submissions made by states impacted by the Ninth Circuit Court of Appeals decision in Western States Paving Co. v. State of Washington Dept. of Transportation, 407 F. 3d 983 (9th Cir. 2005), must be forwarded to HCR for concurrence. The STAs included in this category are Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. In Western States Paving the Court found the Washington State DBE program, as implemented, was not narrowly tailored to accomplish the remedial objectives established by Congress – and consequently not constitutional as applied in that state – because the State failed to produce sufficient evidence of discrimination or its effects in its transportation contracting industry to justify the use of race-conscious measures as an element of its program. The Court also suggested that a narrowly tailored program must structure its use of race-conscious measures to provide remedial relief to those groups that have actually suffered discrimination. US DOT intends to issue specific guidance on the steps that recipients in the Ninth Circuit must take in response to the Western States Paving decision. We will disseminate that guidance as soon as the Office of the General Counsel issues it. In the meantime, division offices that serve STAs in the Ninth Circuit should take the following steps:
Also attached for your use are (1) a sample letter of acknowledgment, (2) a sample approval letter, and (3) a sample decision document. We ask that you use the samples provided because they have been carefully crafted to document FHWA action. It is important to note that the sample approval letter requires that you clearly identify the approved annual overall DBE goal and the race-conscious and race-neutral breakdown. All approval letters should contain this information. The attached guidance also provides instruction to the division offices on the process for approving significant changes to a STA's US DOT approved DBE program. While STAs are not required to obtain FHWA approval of regular updates of their DBE programs, significant changes to a STA's program require prior approval before implementation. To ensure that HCR is apprised of the current status of each STA's approved DBE program, we ask that each division office take the following actions upon receipt of this memorandum:
Any questions you may have about the guidance may be directed to Calvin Gibson, HCR, at (202) 366-2024 and/or Jo Anne Robinson, HCC, at (202) 366-1346. Attachment 1 |
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