80646 Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations 

ADR Panel’s findings regarding the 

claim and discuss the findings 

supporting the decision. 

(d) The agency decision constitutes a 

final agency decision that is 

precedential and binding on the parties 

involved unless invalidated by an order 

of a court of competent jurisdiction. 

(e) The 340B ADR Panel will submit 

the final agency decision to all parties, 

and to HRSA for appropriate action 

regarding refunds, penalties, removal, or 

referral to appropriate Federal 

authorities. 

[FR Doc. 2020–27440 Filed 12–10–20; 11:15 am] 

BILLING CODE 4165–15–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 26 

RIN No. 2105–AE92 

Disadvantaged Business Enterprise 

Program; Inflationary Adjustment 

AGENCY: Office of the Secretary (OST), 

Department of Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: The United States Department 

of Transportation (DOT) is amending 

the small business size limit under its 

Disadvantaged Business Enterprise 

(DBE) program, also known as the gross 

receipts cap, to ensure that small 

businesses may continue to participate 

in the Department’s DBE program after 

taking inflation into account. This final 

rule provides an inflation adjustment to 

the size limit on small businesses 

participating in the DBE program and 

implements a statutory change to the 

size standard pursuant to the Federal 

Aviation Administration (FAA) 

Authorization Act of 2018. 

DATES: This rule is effective January 13, 

2021. 

FOR FURTHER INFORMATION CONTACT: 

Chris Cialeo, Office of the General 

Counsel (C–10), U.S. Department of 

Transportation, 1200 New Jersey 

Avenue SE, Washington, DC 20590, 

(202) 366–8789, christopher.cialeo@

dot.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The DBE program for DOT-assisted 

contracts is a statutory program 

intended to ensure nondiscriminatory 

contracting opportunities for small 

business concerns owned and 

controlled by socially and economically 

disadvantaged individuals in the 

Department’s highway, mass transit, and 

airport financial assistance programs. 

The statutory provision governing the 

DBE program in the highway and mass 

transit financial assistance programs is 

section 1101(b) of the Fixing America’s 

Surface Transportation (FAST) Act 

(Pub. L. 114–94, Dec. 4, 2015), and the 

statutory provision governing the DBE 

program as it relates to airport financial 

assistance programs is 49 U.S.C. 47113. 

Under the Department’s existing 

rules, to qualify as an eligible DBE firm, 

a firm’s average annual gross receipts 

over the preceding three fiscal years 

cannot exceed a DOT-specific gross 

receipts cap. On April 2, 2007, in 

response to direction in the Safe, 

Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for 

Users (SAFETEA–LU) (Pub. L. 109–59, 

August 10, 2005) to adjust this gross 

receipts cap annually for inflation, the 

Department published a final rule 

adjusting the gross receipts cap for its 

DBE program in 49 CFR part 26 from 

$19,570,000 to $20,410,000 (72 FR 

15614). On April 3, 2009, the 

Department published another final rule 

adjusting the gross receipts cap for its 

DBE program from $20,410,000 to 

$22,410,000 (74 FR 15222). The Moving 

Ahead for Progress in the 21st Century 

(MAP–21) Act (Pub. L. 112–141, July 6, 

2012) maintained the $22,410,000 gross 

receipts cap amount set by the April 

2009 final rule. On October 2, 2014, the 

Department issued a final rule that 

increased the gross receipts cap to 

$23,980,000 (79 FR 59565). In 2015, The 

FAST Act maintained the $23,980,000 

gross receipts cap set by the October 

2014 rule. Section 1101(b)(2)(A)(ii) of 

the FAST Act reaffirms the Secretary of 

Transportation’s requirement to adjust 

this amount annually for inflation. 

Accordingly, this final rule adjusts the 

gross receipts cap for inflation by 

increasing the gross receipts cap 

applicable to firms for purposes of 

Federal Highway Administration 

(FHWA)—and Federal Transit 

Administration (FTA)—assisted work to 

$26,290,000. 

The Federal Aviation Administration 

(FAA) Reauthorization Act of 2018 (Pub. 

L. 115–254) removed the gross receipts 

cap for purposes of eligibility for FAAassisted work. Therefore, the revised 

rule reflects that the gross receipts cap 

does not apply for purposes of 

determining a firm’s eligibility for FAAassisted work. 

II. Business Size Standards for the DBE 

Program 

To make an inflation adjustment to 

the gross receipts figures, DOT uses the 

Department of Commerce’s price index 

for State and local consumption 

expenditures (gross output of general 

government). The Bureau of Economic 

Analysis at the Department of 

Commerce prepares constant dollar 

estimates of State and local government 

purchases of goods and services by 

deflating current dollar estimates by 

suitable price indexes. These indexes 

include purchases of durable and nondurable goods, and other services. Using 

these price deflators enables the 

Department to adjust dollar figures for 

inflation from past years. 

The current inflation rate on 

purchases by State and local 

governments is calculated by dividing 

the price deflator for the fourth quarter 

of 2019 (116.030) by 2015’s fourth 

quarter price deflator (105.829). See 

Bureau of Economic Analysis Table 

3.10.4, Price Indexes for Government 

Consumption Expenditures and General 

Government Gross Output (January 30, 

2020). The result of the calculation is 

1.09639, which represents an inflation 

rate of 10.9639% from the fourth quarter 

of 2015. Multiplying the FAST Act’s 

$23,980,000 standard for disadvantaged 

business enterprises in DOT financial 

assistance programs by 1.09639 equals 

$26,291,465, which will be rounded off 

to the nearest $10,000 is $26,290,000. 

Therefore, if a firm’s gross receipts 

averaged over the firm’s previous three 

fiscal years exceeds $26,290,000, it 

exceeds the small business size limit for 

participation in FHWA and FTAassisted work under the Department’s 

DBE program. The Department will 

adjust this amount for inflation on an 

annual basis. In subsequent years, the 

revised amount will be published on the 

Departmental Office of Civil Rights’ 

website. 

Regulatory Analyses and Notices 

Under the Administrative Procedure 

Act (5 U.S.C. 553(b)(B)), an agency may 

waive notice and comment procedures 

if it finds good cause that such 

procedures are impracticable, 

unnecessary, or contrary to the public 

interest. The Department finds that 

notice and comment for this rule is 

unnecessary because it only relates to 

ministerial updates of business size 

standards and gross receipts caps to 

account for inflation, which does not 

change the standards or caps in real 

dollar terms. Accordingly, the 

Department finds good cause under 5 

U.S.C. 553(b)(B) to waive notice and 

opportunity for public comment. 


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Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations 80647 

A. Executive Order 13771 (Reducing 

Regulation and Controlling Regulatory 

Costs), Executive Order 12866 

(Regulatory Planning and Review), 

Executive Order 13563 (Improving 

Regulation and Regulatory Review), and 

49 CFR Part 5 (DOT Administrative 

Rulemaking, Guidance, and 

Enforcement Procedures) 

This rule is not a significant 

regulatory action under Executive Order 

12866, Regulatory Planning and Review, 

as supplemented by Executive Order 

13563, Improving Regulation and 

Regulatory Review. It is also not 

significant within the meaning of DOT 

regulatory policies and procedures. This 

rule is issued in accordance with the 

Department’s rulemaking procedures 

found in 49 CFR part 5 and DOT Order 

2100.6. 

The Department does not anticipate 

that this rulemaking will have an 

economic impact on regulated entities. 

The rule is a ministerial adjustment for 

inflation of a statutory small business 

size standard. It will not impose 

burdens on any regulated parties. 

This rule is not an Executive Order 

13771 regulatory action because this 

rule is not significant under Executive 

Order 12866. 

B. Regulatory Flexibility Act 

In compliance with the Regulatory 

Flexibility Act (Pub. L. 96–354, 5 U.S.C. 

601–612), DOT has evaluated the effects 

of this action on small entities and have 

determined that the action will not have 

a significant economic impact on a 

substantial number of small entities. 

The rule is a ministerial update to the 

size limits to define small businesses for 

the Department’s Financial Assistance 

Program for Disadvantaged Business 

Enterprises. The only effect of the rule 

on small entities is to allow some small 

businesses to continue to participate in 

the DBE programs by adjusting for 

inflation, and to align the regulation 

with a change to the part 26 size 

standard for FAA-assisted work 

pursuant to the FAA Reauthorization 

Act of 2018. Therefore, the Department 

certifies that this rule would not have a 

significant economic impact on a 

substantial number of small entities. 

C. Executive Order 13132 (Federalism) 

This action has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132 (Federalism), and the Department 

has determined that this action will not 

have sufficient federalism implications 

to warrant the preparation of a 

federalism assessment. The Department 

has also determined that this action will 

not preempt any State law or State 

regulation or affect the States’ ability to 

discharge traditional State governmental 

functions. 

D. Executive Order 13175 (Tribal 

Consultation) 

This rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13175 (Consultation and Coordination 

with Indian Tribal Governments). 

Because this rule will not significantly 

or uniquely affect the Indian tribal 

communities, and will not impose 

substantial direct compliance costs, the 

funding and consultation requirements 

of the Executive Order do not apply. 

E. Unfunded Mandates Reform Act of 

1995 

This rule does not impose unfunded 

mandates as defined by the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 

104–4; 109 Stat. 48). This rule will not 

result in the expenditure by State, local, 

and tribal governments, in the aggregate, 

or by the private sector, of $148.1 

million or more in any one year (2 

U.S.C. 1532). The definition of ‘‘Federal 

mandate’’ in the Unfunded Mandates 

Reform Act excludes financial 

assistance of the type in which State, 

local, or tribal governments have 

authority to adjust their participation in 

the program in accordance with changes 

made in the program by the Federal 

Government. Since this rule pertains to 

a nondiscrimination requirement and 

affects only Federal financial assistance 

programs, the Unfunded Mandates 

Reform Act does not apply. 

F. Executive Order 12372 

(Intergovernmental Review) 

The regulations implementing 

Executive Order 12372 regarding 

intergovernmental consultation on 

Federal programs and activities do not 

apply to this program. 

G. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (PRA) (44 U.S.C. 3501), Federal 

agencies must obtain approval from the 

Office of Management and Budget 

(OMB) for each collection of 

information they conduct, sponsor, or 

require through regulations. The 

Department has determined that this 

rule does not contain collection of 

information requirements for the 

purposes of the PRA. 

H. National Environmental Policy Act 

The agency has analyzed the 

environmental impacts of this action 

pursuant to the National Environmental 

Policy Act of 1969 (NEPA) (42 U.S.C. 

4321, et seq.) and has determined that 

it is categorically excluded pursuant to 

DOT Order 5610.1C, ‘‘Procedures for 

Considering Environmental Impacts’’ 

(44 FR 56420, October 1, 1979). 

Categorical exclusions are actions 

identified in an agency’s NEPA 

implementing procedures that do not 

normally have a significant impact on 

the environment and therefore do not 

require either an environmental 

assessment or environmental impact 

statement. The purpose of this 

rulemaking is to make an inflation 

adjustment of the size limit on small 

businesses participating in the DBE 

program. The agency does not anticipate 

any environmental impacts, and there 

are no extraordinary circumstances 

pertaining to this rulemaking. 

List of Subjects in 49 CFR Part 26 

Administrative practice and 

procedure, Civil rights, Disadvantaged 

business, Government contracts, Grant 

programs–transportation, Highways and 

roads, Mass transportation, Minority 

business, Reporting and recordkeeping 

requirements, Small business. 

For the reasons stated in the 

preamble, the Department of 

Transportation amends 49 CFR part 26 

as follows: 

PART 26—PARTICIPATION BY 

DISADVANTAGED BUSINESS 

ENTERPRISES IN DEPARTMENT OF 

TRANSPORTATION FINANCIAL 

ASSISTANCE PROGRAMS 

■ 1. The authority citation for part 26 is 

revised to read as follows: 

Authority: 23 U.S.C. 324; 42 U.S.C. 2000d, 

et seq.; Sec. 1101(b), Pub. L. 114–94, 129 Stat. 

1312, 1324; 49 U.S.C. 47113, 47123; Sec. 150, 

Pub. L. 115–254, 132 Stat. 3215. 

■ 2. In § 26.65, revise paragraph (b) to 

read as follows: 

§ 26.65 What rules govern business size 

determinations? 

* * * * * 

(b) Even if it meets the requirements 

of paragraph (a) of this section, a firm 

is not an eligible DBE for the purposes 

of Federal Highway Administration and 

Federal Transit Administration-assisted 

work in any Federal fiscal year if the 

firm (including its affiliates) has had 

average annual gross receipts, as defined 

by SBA regulations (see 13 CFR 

121.104), over the firm’s previous three 

fiscal years, in excess of $26.29 million. 

The Department will adjust this amount 

for inflation on an annual basis. The 

adjusted amount will be published on 

the Department’s website in subsequent 

years. 

* * * * * 


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80648 Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Rules and Regulations 

1Public Law 110–432. 

2 49 U.S.C. 11401. 

3RSIA, Sec. 202. 

4 75 FR 36551 (June 28, 2010) (codified at 49 CFR 

234.11). 5 49 U.S.C. 11401. 

Issued this 25th day of November, 2020, at 

Washington, DC, under authority delegated 

in 49 CFR 1.27(a). 

Steven G. Bradbury, 

General Counsel. 

[FR Doc. 2020–26549 Filed 12–11–20; 8:45 am] 

BILLING CODE 4910–9X–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 234 

[Docket No. FRA–2018–0096, Notice No. 2] 

RIN 2130–AC72 

State Highway-Rail Grade Crossing 

Action Plans 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: FRA is issuing this final rule 

in response to the Fixing America’s 

Surface Transportation Act mandate 

that FRA issue a rule requiring 40 States 

and the District of Columbia to develop 

and implement highway-rail grade 

crossing action plans. This final rule 

also requires ten States that developed 

highway-rail grade crossing action plans 

as required by the Rail Safety 

Improvement Act of 2008 and FRA’s 

implementing regulation to update their 

plans and submit reports to FRA 

describing actions they have taken to 

implement them. 

DATES: This final rule is effective 

January 13, 2021. 

ADDRESSES: Docket: For access to the 

docket to read background documents 

or comments received, go to http://

www.regulations.gov and follow the 

online instructions for accessing the 

docket. 

FOR FURTHER INFORMATION CONTACT: 

James Payne, Staff Director, HighwayRail Crossing and Trespasser Programs 

Division (telephone: 202–493–6005); 

Debra Chappell, Transportation 

Specialist (telephone: 202–493–6018); 

or Kathryn Gresham, Attorney Adviser, 

Office of the Chief Counsel (telephone: 

202–493–6063). 

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary 

Information 

I. Executive Summary 

II. Funding 

III. Section-by-Section Analysis 

IV. Regulatory Impact and Notices 

A. Executive Order 12866, Congressional 

Review Act, and DOT Regulatory 

Policies and Procedures 

B. Regulatory Flexibility Determination 

C. Federalism 

D. Paperwork Reduction Act 

E. Environmental Impact 

F. Executive Order 12898 (Environmental 

Justice) 

G. Unfunded Mandates Reform Act of 1995 

H. Energy Impact 

I. Executive Summary 

This final rule revises FRA’s 

regulation (49 CFR 234.11) on State 

highway-rail grade crossing action plans 

(Action Plans) to require 40 States and 

the District of Columbia (DC) to develop 

and implement FRA-approved Action 

Plans. The final rule also requires ten 

States that were previously required to 

develop Action Plans by the Rail Safety 

Improvement Act of 2008 1 (RSIA) and 

FRA’s implementing regulation at 49 

CFR 234.11 to update their plans and 

submit reports describing the actions 

they have taken to implement their 

plans. 

This final rule is intended to 

implement the Fixing America’s Surface 

Transportation Act (FAST Act) mandate 

that the FRA Administrator promulgate 

a regulation requiring States to develop, 

implement (and update, if applicable) 

Action Plans.2 In RSIA, Congress 

directed the Secretary of Transportation 

(Secretary) to identify the ten States that 

had the most highway-rail grade 

crossing (GX) collisions, on average, 

over the previous three years, and 

require those States to develop Action 

Plans for the Secretary’s approval.3

RSIA required the Action Plans to 

‘‘identify specific solutions for 

improving’’ grade crossing safety and to 

‘‘focus on crossings that have 

experienced multiple accidents or are at 

high risk’’ for accidents. Using FRA’s 

database of reported GX accidents/ 

incidents that occurred at public and 

private grade crossings, FRA determined 

the following ten States had the most 

reported GX accidents/incidents at 

public and private grade crossings 

during the three-year period from 2006 

through 2008: Alabama, California, 

Florida, Georgia, Illinois, Indiana, Iowa, 

Louisiana, Ohio, and Texas. Therefore, 

on June 28, 2010, FRA issued a final 

rule (2010 final rule) requiring these ten 

States to develop Action Plans and 

submit them to FRA for approval (based 

on the Secretary’s delegation of 

authority to the Federal Railroad 

Administrator in 49 CFR 1.89).4

Section 11401 of the FAST Act 

(Section 11401) 5 tasks the FRA 

Administrator with promulgating a 

regulation requiring these ten States to 

update the Action Plans they previously 

submitted to FRA under 49 CFR 234.11. 

This statutory mandate also directs FRA 

to include a regulatory provision that 

requires each of these ten States to 

submit a report to FRA describing: (a) 

What the State did to implement its 

previous Action Plan; and (b) how the 

State will continue to reduce GX safety 

risks. As for the other 40 States and DC, 

Section 11401(b)(1)(B) requires the FRA 

Administrator to promulgate a 

regulation requiring them to develop 

and implement State Action Plans. 

The FAST Act mandate contains 

specific requirements for the contents of 

the Action Plans. As set forth in Section 

11401(b)(2), each Action Plan must 

identify GXs that: (a) Have experienced 

recent GX accidents or incidents; (b) 

have experienced multiple GX accidents 

or incidents; or (c) are at high-risk for 

accidents or incidents. Section 

11401(b)(2) further provides that each 

Action Plan must identify specific 

strategies for improving safety at GXs, 

including GX closures or grade 

separations, and that each State Action 

Plan must designate a State official 

responsible for managing 

implementation of the plan. 

In addition, the FAST Act mandate 

contains requirements related to FRA’s 

review and approval of State Action 

Plans, as well as requirements related to 

the publication of FRA-approved plans. 

For example, when FRA approves a 

State’s Action Plan, Section 11401(b)(4) 

requires FRA to make the approved plan 

publicly available on an ‘‘official 

internet website.’’ 

If a State submits an Action Plan FRA 

deems incomplete or deficient, Section 

11401(b)(6) requires FRA to notify the 

State of the specific areas in which the 

plan is deficient. In addition, Section 

11401(b)(6) requires States to correct 

any identified deficiencies and resubmit 

their corrected plans to FRA within 60 

days from FRA’s notification of the 

deficiency. If a State fails to meet this 

60-day deadline for correcting 

deficiencies identified by FRA, Section 

11401(b)(8) requires FRA to post a 

notice on an ‘‘official internet website’’ 

that the State has an incomplete or 

deficient Action Plan. FRA personnel, 

including FRA regional grade crossing 

managers, inspectors, and specialists 

and experts from FRA’s Highway-Rail 

Crossing and Trespasser Programs 

Division, are available to assist States 

with developing, implementing, and 


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