U.S. Department of Transportation
Federal Highway Administration
1200 New Jersey Avenue, SE
Washington, DC 20590
The Federal Highway Administration (FHWA) Office of Civil Rights (HCR) is issuing this document to highlight key provisions in SAFETEA-LU that relate directly to and/or implicate civil rights programs. It is intended for the use of the various FHWA civil rights staff in field offices, as well as State Departments of Transportation (DOTs) and their recipients and local partners. Short summaries, of key provisions in the statute related to the civil rights program, are provided. This document also identifies actions that HCR will be undertaking--with several offices in Headquarters and Divisions--in administering and overseeing the FHWA civil rights programs affected by SAFETEA-LU.
Section 1101(b) -- Authorization of Appropriations/Disadvantaged Business Enterprises (DBE): This Section continues the DBE program as previously authorized under TEA-21. The program continues to apply to funds made available under Title I - Federal-aid Highways; Title III – Public Transportation; and Title V – Research. In addition, the DBE program now applies to funds made available for highway safety under 23 USC § 403.
In SAFETEA-LU, the U.S. Congress raised the gross receipts cap used to determine whether a business meets the size standard applicable to small businesses interested in participating in the DBE program. The current threshold is capped at $19,570,000 average annual gross receipts over the preceding three fiscal years. The cap is to be adjusted annually by the U.S. Secretary of Transportation for inflation. The States must use this new figure when evaluating the eligibility of firms to participate in the DBE program.
The implementing regulations for the DBE program will be retained as published by the Department in Title 49 Code of Federal Regulations (49 CFR) Part 26. It is important to note that consistent with current U.S.DOT policy, the DBE program requirements may be applied to all contracts, whether construction or non-construction (e.g., professional services, consulting, supplies, etc.) let by FHWA recipients or sub-recipients that are funded in whole or in part by the FHWA. Therefore, all contracts funded by highway trust funds, including advance construction and State Infrastructure Banks projects, regardless of whether they are on or off the National Highway System, can be used for DBE participation. The FHWA must continue to approve each State's DBE program and its annual goals, and ensure compliance with all DBE program requirements.
Section 10201, Notice Regarding Participation of Small Business Concerns (Title X – Miscellaneous Provisions, Subtitle B): This Section requires the U.S. Secretary of Transportation to issue to State and local recipients of Federal funds a notice of the criteria for participation by a small business concern in any program or project funded in whole or in part under Section 155 of the Small Business Reauthorization and Manufacturing Assistance Act of 2004. The U.S.DOT will be issuing guidance on the impact of this provision and Section 155 on DBE program certification requirements. The HCR staff will notify the State DOTs, other customers, and partners when the guidance is issued. In the meantime, recipients are to continue implementing the U.S.DOT DBE certification requirements without change.
Section 1920 – Transportation and Local Workforce Investment (b) Sense of Congress: This Section expresses Congressional interest in encouraging greater collaboration among Federal, State, local governments, community based organizations (CBOs), high schools, and community colleges to help ensure that local communities are a part of building transportation projects. Transportation projects provide excellent opportunities to facilitate and encourage partnerships with various communities to improve job skills for low-income individuals.
The HCR staff will continue to encourage State DOTs to utilize On-the-Job Training Supportive Services (OJTSS) funds to increase the effectiveness of approved on-the-job training programs conducted in connection with Federal-aid highway construction projects. Accordingly, HCR strongly encourages the Divisions to ensure that States are aware of the provisions in Section 5204(e) of SAFETEA-LU that allow 100% Surface Transportation Program (STP) funding for workforce development activities. These workforce development activities cover surface transportation workers, including activities for minorities and women as authorized in 23 USC 140(b). This section addresses services that support and enhance the effectiveness of on-the-job training programs. The HCR will also work with Divisions and DOTs to encourage and fund collaborative efforts that promote local participation in transportation projects without running afoul of the existing legal restrictions on the use of State, local, or territorial hiring preferences on FHWA funded contracts.
Section 1922 – Technical Amendments to Nondiscrimination Section: In this section Congress made several technical amendments to Section 140(a), (b), (c), and (d) of Title 23, United States Code (23 USC 140) to, among other things, eliminate gender bias in the use of certain terms and to update references to other sections of Title 23. Examples of such corrections include, but are not limited to: Under (a)(1) of this section, "State Assurances," Section 140(a) of title 23, United States Code, is amended "in the first sentence by striking 'subsection (a) of section 105 of this title'; and inserting 'section 135';"; and under (1)(2) of this section, "Section 140(a) of title 23, United States Code, is amended "by striking 'He'; and inserting 'The Secretary';." The subsection heading in 140(d) "Indian Employment and Contracting" was amended to strike "and Contracting". The HCR will ensure that all such amendments are inserted in its guidance, technical assistance documents, and manuals when updated.
Section 5201(b)(2)(a)(1) – Research, Technology, and Education; and (c)(3) – Cooperation, Grants, and Contracts: To support the objectives outlined in these sections that pertain to basic principles governing research and technology investments, HCR will work with FHWA';s Research and Development Office. The HCR will continue to encourage an increase in the number of cooperative agreements with Minority Institutions of Higher Education (MIHE), e.g., Historically Black Colleges and Universities (HBCUs), Hispanic-Serving Institutions (HSI), and Tribal Colleges (TC). The HCR';s focus will be on MIHEs that are capable of developing new curricula or educational programs that meet the specific research and technology needs of the transportation industry.
Section 5204 – Training and Education/Surface Transportation Workforce Development, Training, and Education: This section states that subject to project approval by the Secretary, a State may obligate funds apportioned to the State for five primary core programs (STP, NHS, Bridge, IM, CMAQ), workforce development, training, and education, including student internships; university or community college support; and outreach to develop interest and promote participation in surface transportation careers. The Summer Transportation Internship Program for Diverse Groups (STIPDG) is an important part of USDOT';s intermodal effort to promote the entry of women, persons with disabilities, and members of diverse groups into transportation careers Accordingly, HCR will continue to actively support STIPDG by working closely with FHWA';s Office of Human Resources which has responsibility for administering the program, as well as the FHWA Divisions and other USDOT agencies.
Section 5204(d)(1) – Training and Education/Garrett A. Morgan Technology and Transportation Education Program: This section continues the Garrett A. Morgan Technology and Transportation Education Program. The Summer Transportation Institute (STI) is part of this Program, administered and funded through HCR. The STI is an educational initiative designed to prepare students (particularly, minorities and women), to become an important part of the transportation workforce of the 21st century by focusing on science, technology, engineering, and mathematics through curriculum development and other enrichment activities. HCR will continue to collaborate with FHWA Division Offices, STAs, and the National Resource Center for STI to promote the creation of partnerships and ensure the program meets its goals and objectives. (See also, section 5204(D)(2)(A) regarding the promotion of internships that offer students experience in the transportation field.)
Section 5204 (e) – Surface Transportation Workforce Development Training and Education – This section "provides for 100% federal funding if the core program funds are used for training, education, or workforce development purposes, including 'pipeline'; activities. If used for these purposes, it is not necessary for the state to match the federal funds." (excerpt from January 11, 2006 "Guidance for Use of Federal Aid State Core Program Funds for Training, Education and Workforce Development, SAFETEA-LU Section 5204(e), Questions and Answers," issued by the Office of Professional and Corporate Development). The five primary core programs are: Bridge, CMAQ, IM, NHS, and STP. Examples of "pipeline" programs that the core funds could be used to support include, but are not limited to various education and outreach-related activities, such as "student transportation related internships; cooperative education program, university and college support activities..." (excerpt from same January 11, 2006 guidance document noted above) Whereas TEA-21 allowed states to draw down up to ½ of 1% of Surface Transportation programs and Highway Bridge Replacement and Rehabilitation funds for training, States can now use up to 100% of such funds for workforce development purposes. Under 5204(e) training and development is defined as "activities associated with surface transportation career awareness, student transportation career preparation, and training and professional development for surface transportation workers, including activities for women and minorities". The HCR will work with the FHWA Division Offices to strongly encourage States to take advantage of this provision to help fund OJT supportive services programs.
The following briefly describes the primary purpose of the five core program areas where funds can be used to support training, education, and workforce development:
Section 5204(f)(1) – Training and Education/Transportation Education Development Pilot Program: This section establishes a pilot program that provides grants of $300,000 to institutions of higher education that, in partnership with industry or State departments of transportation, will develop, test, and revise new curricula and education programs. The new curricula or program should provide training in areas other than engineering, such as business administration, economics, environmental science, urban planning, law, etc. These education programs will be designed to train individuals at all levels of the transportation workforce. HCR will work with all appropriate parties to conduct outreach activities to ensure that Minority Institutions of Higher Education are informed of these opportunities, and of the criteria and process to participate as grant recipients.
Section 6001 – Metropolitan Transportation Planning – This section emphasizes the involvement of all interested parties in the improvement and evolution of metropolitan and statewide transportation planning process by metropolitan planning organizations (MPOs). This section specifically mentions representatives of the disabled as one of these interested parties. Accordingly, HCR will promote a multi-interdisciplinary team approach to increasing broad citizen representation and participation by encouraging Title VI and ADA/504 coordinators to consult with those in FHWA/STA responsible for facilitating reasonable opportunities for all interested parties. Outreach activities should include minority communities, low income, and others to comment on transportation plans, and to become involved in helping avoid inequitable outcomes in transportation policy.