Memorandum
Date: MAR 16 2010
Subject: ACTION: NEW DBE Goal Submission Schedule
[PDF Version, 194KB]
From: Allen Masuda 
Associate Administrator for Civil Rights
To: Division Administrators
In Reply Refer to: HCR-1
Effective March 5, 2010, the Department of Transportation Disadvantaged Business Enterprise (DBE) program rules were amended to change how often recipients are required to make goal submissions documenting the methodology and process used to establish the annual overall goal to be implemented each fiscal year. Under the new rules, DBE goal submissions will be made at three year intervals, with roughly one third (17 or 18) of FHWA direct recipients making a submission each year. All recipients will no longer submit for approval their annual DBE goal methodology and process on August 1 st of each year. We are required by April 4th to post on our website the schedule of submissions and to provide each recipient specific notice of when its next DBE goal submission is due.
The attached schedule will be posted on the Office of Civil Rights website on or before April 4th. Please ensure that your State Transportation Agency receives a copy of the schedule before that date so that they can plan accordingly. We suggest that you document the receipt by the State of the new schedule.
The DOT Office of the General Counsel is expected to develop additional
guidance. We will get
that information to you as soon as it becomes available. In addition, we will
be convening a
teleconference with civil rights staff to answer any questions they may have
about the schedule.
FHWA THREE YEAR OVERALL DBE GOAL SUBMISSION SCHEDULE
Effective March 5, 2010, primary or direct recipients of financial assistance from the Federal Highway Administration (FHWA) that are required to implement a disadvantaged business enterprise (DBE) program will no longer submit for approval their DBE goal setting methodology and process every year. The annual overall DBE goal based on approved submissions will be in place for three years. This means that each year during the three year period the overall goal will remain the same until the next review cycle and each fiscal year the recipient must make a good faith effort to meet the goal. The substantive goal setting requirements are not changed. It is the FHWA's expectation that recipients will use the time between submissions to improve the overall quality of the goal setting process by developing systems to collect and analyze data needed to support their goal setting methodologies and by fully engaging stakeholders and the public in meaningful ways to obtain relevant information. This expectation will be reflected in the scrutiny given to the submissions. Establishing an annual overall goal for DBE participation that comes as close as possible to approximating the level of participation one would expect in the absence of discrimination or the lingering effects of discrimination is essential to accomplishing the remedial objective of the DBE program.
To transition from a yearly DBE goal setting cycle to a three-year cycle, the FHWA will stagger the DBE goal submissions that are required August 1st so that annually one-third of FHWA recipients will submit to the appropriate division office a DBE goal submission that will be in place for three federal fiscal years. During the three-year period, recipients may make mid-cycle adjustments to their methodology if they experience changes in circumstances that have a significant impact on the established goal. Such mid-cycle adjustments may not take effect until approved by FHWA. Examples of changes that may precipitate an adjustment include significant increases or decreases in the kind (not the amount) of work typically included in a recipient's federally assisted contracting program or significant increases or decreases (25 percent or more) in the availability of DBEs or potential DBEs in the recipient's transportation contracting market. The FHWA also may direct a recipient to undertake a mid-cycle review of its methodology if necessary to ensure the goal continues to reflect conditions that exist in the local transportation contracting market.
The schedule for DBE goal submissions by direct recipients in the states listed below is as follows:
August 1, 2010
Nevada, Hawaii, Oregon, Idaho, Montana, Indiana, Michigan, Ohio, Kentucky, New York, Delaware, New Jersey, Massachusetts, Oklahoma, Arkansas, Louisiana, Mississippi, and Texas
August 1, 2011
Arizona, Alaska, Washington, Nebraska, Missouri, Iowa, Wisconsin, North Dakota, New Hampshire, Pennsylvania, Rhode Island, Virginia, Florida, Puerto Rico, South Carolina, Tennessee, and New Mexico
August 1, 2012
California, Utah, Wyoming, Colorado, So.uth Dakota, Kansas, Minnesota, Illinois, District of Columbia, Connecticut, Maryland, West Virginia, Vermont, North Carolina, Maine, Alabama, Virgin Islands, and Georgia
Direct recipients that are not required to make a DBE goal submission this year (2010) must continue operating under the goal methodology last approved by FHWA. The division office should provide a copy of the approval document to the Office of Civil Rights and the Office of Chief Counsel. As explained above, mid-cycle adjustments may be made if warranted, subject to FHWA prior approval.
The acknowledgment letter typically sent to a recipient upon receipt of its submission that instructs the recipient to implement the goal it has established pending FHWA review does not constitute affirmative approval by FHWA. Recipients are reminded that timely submission of the DBE goal setting methodology and completion of the process is a condition of eligibility for receipt of FHWA financial assistance. Failure to meet the August 1st deadline means you are in non-compliance with federal requirements and subject to the sanctions authorized by 49 CFR §26.101 and 23 §CFR §1.36. The August 1st deadline may not be extended.
Requests to waive the three year DBE goal cycle are subject to the requirements of 49 CFR §26.15(b). However, the approval of the Secretary of Transportation is not required. All waiver requests must be submitted to the appropriate division office within FHWA for approval by the Associate Administrator for the Office of Civil Rights and the Chief Counsel (or their respective delegate). The grant of a waiver is completely discretionary.
Questions about the transition to a three-year cycle should be directed to Martha Kenley via e-mail at martha.kenley@dot.gov in the FHWA Office of Civil Rights or Jo Anne Robinson via e-mail at joanne.robinson@dot.gov in the FHWA Office of Chief Counsel.
