49 C.F.R. § 26.15

How can recipients apply for exemptions or waivers?

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(a) You can apply for an exemption from any provision of this part. To apply, you must request the exemption in writing from the Office of the Secretary of Transportation, FHWA, FTA, or FAA. The Secretary will grant the request only if it documents special or exceptional circumstances, not likely to be generally applicable, and not contemplated in connection with the rulemaking that established this part, that make your compliance with a specific provision of this part impractical. You must agree to take any steps that the Department specifies to comply with the intent of the provision from which an exemption is granted. The Secretary will issue a written response to all exemption requests.

(b) You can apply for a waiver of any provision of Subpart B or C of this part including, but not limited to, any provisions regarding administrative requirements, overall goals, contract goals or good faith efforts. Program waivers are for the purpose of authorizing you to operate a DBE program that achieves the objectives of this part by means that may differ from one or more of the requirements of Subpart B or C of this part. To receive a program waiver, you must follow these procedures:

(1) You must apply through the concerned operating administration. The application must include a specific program proposal and address how you will meet the criteria of paragraph (b)(2) of this section. Before submitting your application, you must have had public participation in developing your proposal, including consultation with the DBE community and at least one public hearing. Your application must include a summary of the public participation process and the information gathered through it.

(2) Your application must show that—

(i) There is a reasonable basis to conclude that you could achieve a level of DBE participation consistent with the objectives of this part using different or innovative means other than those that are provided in subpart B or C of this part;

(ii) Conditions in your jurisdiction are appropriate for implementing the proposal;

(iii) Your proposal would prevent discrimination against any individual or group in access to contracting opportunities or other benefits of the program; and

(iv) Your proposal is consistent with applicable law and program requirements of the concerned operating administration's financial assistance program.

(3) The Secretary has the authority to approve your application. If the Secretary grants your application, you may administer your DBE program as provided in your proposal, subject to the following conditions:

(i) DBE eligibility is determined as provided in subparts D and E of this part, and DBE participation is counted as provided in § 26.49;

(ii) Your level of DBE participation continues to be consistent with the objectives of this part;

(iii) There is a reasonable limitation on the duration of your modified program; and

(iv) Any other conditions the Secretary makes on the grant of the waiver.

(4) The Secretary may end a program waiver at any time and require you to comply with this part's provisions. The Secretary may also extend the waiver, if he or she determines that all requirements of paragraphs (b)(2) and (3) of this section continue to be met. Any such extension shall be for no longer than period originally set for the duration of the program.

Notes of Decisions

Cited in 4 cases, 2000–2015 · leading case: Midwest Fence Corp. v. United States Dep't of Transp., 84 F. Supp. 3d 705 (N.D. Ill. 2015).

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Midwest Fence Corp. v. United States Dep't of Transp., 84 F. Supp. 3d 705 (N.D. Ill. 2015). “49 C.F.R. § 26.15 . Prime contractors can apply to IDOT for a “good faith efforts waiver” on an individual contract goal.”

Adarand Constructors, Inc. v. Slater, 228 F.3d 1147 (10th Cir. 2000). “See 49 C.F.R. § 26.15 (2000) (allowing recipients of federal highway construction funds to seek waivers and exemptions, despite the already non-mandatory nature of DBE programs).”

H.B. Rowe, Inc. v. Tippett, 589 F. Supp. 2d 587 (E.D.N.C. 2008). “49 C.F.R. § 26.15 (b). Like the federal DBE program, under North Carolina’s MWBE program, the 10% and 5% targets for minority and female participation were aspirational rather than mandatory, and individual targets for disadvantaged business participation were set for each…”

Sherbrooke Turf, Inc. v. Minnesota Dep't of Transp., 345 F.3d 964 (8th Cir. 2003). “See 49 C.F.R. § 26.15 (b). Like the district courts, we conclude that the DOT regulations, on their face, satisfy the Supreme Court’s narrow tailoring requirements.”

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