FEDERAL-AID POLICY GUIDE
September 30, 1992, Transmittal 5
NS 23 CFR 230D
OPI: HCR-10
(1) The requirement for contractors to submit the subcontracting information is between the contractors and OFCCP. The OFCCP is required to work through funding agencies and recipients in obtaining compliance with Executive Order 11246 in instances where determinations of noncompliance are made.
(2) The standard EEO provisions do not require submission of subcontracting notices through the contracting (State) or funding (FHWA) agencies. The FHWA is obligated to cooperate with OFCCP in its efforts to obtain compliance.
(1) Construction contractors' reporting requirementsare to continue as before the November 3, 1980, effective date of the OFCCP amendments to 41 CFR 60-4. These reporting requirements are "Under existing OFCCP practice, construction contractors have generally been submitting Forms CC-257 showing minority utilization only for construction work performed in geographic areas in which they hold Federal or federally assisted construction contracts and in which there has been a minority goal applicable."
(2) Increased reporting requirements (beyond those required prior to November 3, 1980) are stayed pending clearance by the Office of Management and Budget.
(3) OFCCP extended the 6.9 percent goal for female utilization.
(1) 8/27/80 - Proposed Changes to Federal-aid Highway Contract EEO Requirements and Compliance Review Program
(2) 11/6/80 - Contract Compliance - FHWA and State Enforcement of OFCCP Required Goals and Timetables in Contracts
(3) 12/11/80 - Clarification of Contract Compliance Responsibilities
(1) Federal-aid projects eligible for Indian employment preference consideration are those projects which are (a) otherwise eligible for funding in whole or in part with Federal-aid highway funds and (b) located on roads within or providing access to an Indian reservation or other Indian lands as defined under the term "Indian reservation roads" in Section 101 of Title 23 and regulations issued thereunder. The terminus of a road "providing access to" is that point at which it intersects with a road functionally classified as a collector or higher classification (outside the reservation boundary) in both urban and rural areas. In the case of an Interstate highway, the terminus is the first interchange outside the reservation.
(2) Indians eligible for employment preference are those living on or near a reservation or Indian lands (as defined above). Indian preference is to be applied without regard to tribal affiliation or place of enrollment. Indians already hired by a contractor should be included as part of the contractor's core-crew. In no instance should a contractor be compelled to layoff or terminate a core-crew employee to meet a preference goal.
(3) TERO - many tribes have established a tax which is applied to contracts for projects performed on the reservation. The proceeds are used by the tribes to fund job referral, counseling, liaison, and other services relating to the employment of Indians. It has been FHWA's longstanding policy to participate in State and local taxes which do not discriminate or otherwise single out Federal-aid highway construction contracts for special or different tax treatment. Thus, if the TERO tax rate on Federal-aid highway contracts is the same as imposed on other projects, such costs are eligible for Federal-aid reimbursement.
(4) Indian Contractor Preference - the language of Section 122 and the legislative history make it clear that the singular intent of the new amendment is to permit and encourage Indian preference in employment on Indian reservation roads. The only contracting preference which can be recognized in a Federal-aid highway contract is that authorized by disadvantaged business enterprise (DBE) statutory provisions (Section 105(f) of the 1982 Surface Transportation Assistance Act and issued thereunder. Under DBE regulations, Native Americans, which include American Indians, are rebuttably presumed to be socially and economically disadvantaged. Thus, Indian owned businesses are eligible for DBE certification by the State and once certified may be given equal preference with other certified DBE's to fulfill goals on Federal-aid projects. The availability of certified Indian owned businesses should be considered in setting contract DBE goals.