Proposed Rule2025-09721
Rescinding Requirements Regarding Federal-Aid Contracts for Appalachian Contracts
Primary source
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Published
May 30, 2025
Issuing agencies
Transportation DepartmentFederal Highway Administration
Abstract
FHWA is proposing to rescind the rule and regulations issued on September 30, 1974, Federal-Aid Contracts (Appalachian Contracts).
Full Text
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<title>Federal Register, Volume 90 Issue 103 (Friday, May 30, 2025)</title>
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[Federal Register Volume 90, Number 103 (Friday, May 30, 2025)]
[Proposed Rules]
[Pages 22878-22881]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-09721]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 633
[Docket No. FHWA-2025-0013]
RIN 2125-AG11
Rescinding Requirements Regarding Federal-Aid Contracts for
Appalachian Contracts
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking.
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SUMMARY: FHWA is proposing to rescind the rule and regulations issued
on September 30, 1974, Federal-Aid Contracts (Appalachian Contracts).
DATES: Comments must be received on or before June 30, 2025.
FOR FURTHER INFORMATION CONTACT: Mr. Anthony DeSimone, Office of
Infrastructure, (317) 226-5307, <a href="/cdn-cgi/l/email-protection#1f7e716b77707166317b7a6c767270717a5f7b706b31787069"><span class="__cf_email__" data-cfemail="80e1eef4e8efeef9aee4e5f3e9edefeee5c0e4eff4aee7eff6">[email protected]</span></a>; or Mr. David
Serody, Office of the Chief Counsel, (202) 366-4241,
<a href="/cdn-cgi/l/email-protection#1175706778753f6274637e756851757e653f767e67"><span class="__cf_email__" data-cfemail="355154435c511b4650475a514c75515a411b525a43">[email protected]</span></a>, Federal Highway Administration, 1200 New Jersey
Avenue SE, Washington, DC 20590. Office hours are from 8:00 a.m. to
4:30 p.m., E.T., Monday through Friday, except Federal holidays.
ADDRESSES: Mail or hand deliver comments to the U.S. Department of
Transportation, Dockets Management Facility, 1200 New Jersey Avenue SE,
Washington, DC 20590, or submit electronically at <a href="http://www.regulations.gov">www.regulations.gov</a>.
All comments should include the docket number that appears in the
heading of this document. All comments received will be available for
examination and copying at the above address from 9 a.m. to 5 p.m.,
E.T., Monday through Friday, except Federal holidays. Those desiring
notification of receipt of comments must include a self-addressed,
stamped postcard or may print the acknowledgment page that appears
after submitting comments electronically. Anyone is able to search the
electronic form of all comments received into any of our dockets by the
name of the individual submitting the comment (or signing the comment,
if submitted on behalf of an association, business, labor union, etc.).
You may review DOT's complete Privacy Act Statement in the Federal
Register published on April 11, 2000 (Volume 65, Number 70, Pages
19477-78) or you may visit <a href="http://www.regulations.gov">www.regulations.gov</a>.
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
This document and all comments received may be viewed online
through the Federal eRulemaking portal at <a href="http://www.regulations.gov">www.regulations.gov</a>. The
website is available 24 hours each day, 365 days each year. An
electronic copy of this document may also be downloaded by accessing
the Office of the Federal Register's home page at:
<a href="http://www.federalregister.gov">www.federalregister.gov</a>.
Background
FHWA is proposing to rescind the rule issued on September 30, 1974,
Federal-Aid Contracts (Appalachian Contracts), via 39 FR 35146, as
amended on October 21, 1975, by 40 FR 49084 and on March 1, 1976, by 41
FR 8769, amending 23 CFR part 633 subpart B. The rule proposed for
rescission provides policies and procedures for administering projects
and funds for the Appalachian Development Highway System (ADHS) and
Appalachian local access roads. 23 CFR 633.201. The FHWA proposes to
rescind the entire subpart B of part 633 and seek comment on all
aspects of that proposal.
This subpart concerns projects for the ADHS and Appalachian local
access roads. Under 40 U.S.C. 14501, the Secretary of Transportation
may assist in the construction of the ADHS and local access roads
serving the Appalachian region, and Congress has appropriated funds for
this purpose. While such Appalachian projects have been, are being, and
likely will continue to be constructed, FHWA does not find it necessary
to maintain the current regulations to administer such construction.
This subpart is being proposed for rescission because it is
substantially outdated and duplicative of other statutory and
regulatory sections. The FHWA discusses the reasons for removing each
section separately below.
Section-by-Section Analysis
Section 633.201, 633.202--Purpose and Definitions
As detailed more below, FHWA is proposing to remove the substantive
provisions within 23 CFR part 633, subpart B. With those provisions
removed, FHWA finds it unnecessary to keep Sec. Sec. 633.201 and
633.202.
Section 633.203--Applicability of Existing Laws, Regulations, and
Directives
Section 633.203, title 23, Code of Federal Regulations states that
the provisions of title 23, U.S.C. that are applicable to the
construction and maintenance of Federal-aid primary and secondary
highways and which the Secretary of Transportation determines are not
consistent with the Appalachian Regional Development Act of 1965 (Act)
(Pub. L. 89-4) shall apply to the development highway system and the
local access roads. This merely restates 40 U.S.C. 14501(g)(2) and is
therefore unnecessary. Further, Sec. 633.203 states that title 23 of
the CFR and directives implementing applicable provisions of title 23,
U.S.C., where not inconsistent with the Act, apply to the development
highway system and the local access roads. Given that certain
provisions of title 23, U.S.C. apply under 40 U.S.C. 14501(g)(2), FHWA
believes it apparent that regulations implementing those provisions
would also apply. The FHWA therefore finds this restatement unnecessary
and proposes to remove Sec. 633.203.
Section 633.204--Fiscal Allocation and Obligations
Section 633.204(a) states that Federal assistance shall not exceed
70 percent of the costs of a project. This provision is outdated; under
40 U.S.C. 14501(e), the Federal share shall not exceed 80 percent of
the cost of a project.\1\ The FHWA further does not believe it
necessary to include a regulatory provision that would merely repeat 40
U.S.C. 14501(e). Similarly, Sec. 633.204(b) states that the FHWA
Division Administrator's authorization to proceed with proposed work
shall establish obligation of Federal funds for a particular project.
Again, FHWA finds this unnecessary to include. Per 40 U.S.C.
14501(g)(1), 23 U.S.C. 106(a) applies to the development system and the
local access roads. Per 23 U.S.C. 106(a)(3), the execution of the
project agreement is deemed a contractual obligation of the Federal
Government. It is typical FHWA policy for authorization to proceed
either through or after the execution of the project agreement. See 23
CFR 630.106(a)(2).
[[Page 22879]]
Thus, FHWA believes that Sec. 633.204(b) merely restates statute and
FHWA practice and FHWA is proposing to remove this provision.
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\1\ Congress has further enacted separate provisions dealing
with the Federal share for the ADHS under certain circumstances. See
Section 1528 of the Moving Ahead for Progress in the 21st Century
Act (Pub. L. 112-141); Section 1435 of the Fixing America's Surface
Transportation Act (Pub. L. 114-94). The FHWA believes this
indicates the flaws in having a regulatory provision stating the
Federal share, rather than relying on the underlying statutory
authority.
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Section 633.205--Prefinancing
Section 633.205(a) concerns projects that may be prefinanced and
references the requirements in section 201(h) of the Act. Section
201(h) of the Act is codified at 40 U.S.C. 14501(f), which is more
detailed than Sec. 633.205(a).\2\ The FHWA therefore proposes to
remove Sec. 633.205(a). Section 633.205(b) states that certain actions
for projects using interim State financing must include the statement
``There is no commitment or obligation on the part of the United States
to provide funds for this highway improvement. However, this project is
eligible for Federal reimbursement when sufficient funds are available
from the amounts allocated by the Appalachian Regional Commission.''
While 40 U.S.C. 14501(f)(2) states that 40 U.S.C. 14501(f)(1) does not
commit or obligate the Federal Government to provide amounts for
segments of development highways constructed under this subsection, it
does not require that any statement be specifically included. The FHWA
believes such a statement is unnecessary and that current FHWA
processes can determine which projects are being constructed with
interim State financing and is proposing to remove Sec. 633.205(b).
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\2\ Under 40 U.S.C. 14501(f), States that construct segments of
development highways without Federal assistance but in accordance
with the procedures and requirements applicable to the construction
of segments of Appalachian development highways may ask FHWA and the
Appalachian Regional Commission to pay to the State the Federal
share of the construction. This is similar to Advance Construction
under 23 U.S.C. 115.
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Section 633.206--Project Agreements
Section 633.206(a) requires project agreements for projects under
the Appalachian program to contain specific language. Under Sec.
633.206(a)(1), the State Department of Transportation (State DOT) is
required to state that it agrees to comply with applicable laws,
regulations, and policies and procedures. FHWA finds such a statement
unnecessary; the State DOT must comply with applicable laws,
regulations, and policies and procedures because they are applicable.
Under Sec. 633.206(a)(2), the project agreement must include specific
language that projects constructed on a section of an Appalachian
development route not already on the Federal-Aid Primary System must be
added to the system prior to, or upon completion of, construction
accomplished with Appalachian funds. This merely reiterates 40 U.S.C.
14501(c), and FHWA finds it unnecessary to specifically include a
statement in a project agreement repeating applicable law. Similarly,
Sec. 633.206(b) requires prefinanced projects to include provisions in
their project agreements repeating the requirements of 40 U.S.C.
14501(f). Again, FHWA finds this addition unnecessary and is therefore
proposing to remove Sec. 633.206.
Section 633.207--Construction Labor and Materials
Section 633.207(a) states that construction and materials ``shall
be in accordance with the State highway department standard
construction specifications approved for use on Federal-aid primary
projects and special provisions and supplemental specifications
amendatory thereto approved for use on the specific projects.'' The
FHWA considers this provision as unnecessary, given that it reiterates
the construction standard requirements in 23 CFR part 625 and the
materials standards in 23 CFR part 635, subpart D.
Section 633.207(b) states that 23 U.S.C. 324, Title VI of the Civil
Rights Act of 1964 (42 U.S.C. 2000d-2000d-4), and implementing
regulations at 49 CFR part 21 apply to contracts listed in Appendix A
to Subpart B of Part 633. As described below, FHWA proposes to remove
Appendix A and therefore similarly proposes to remove Sec. 633.207(b).
Similarly, Sec. Sec. 633.207(c) and (d) only state that Appendix B and
C, respectively, must be included in certain contracts. As described
below, FHWA is proposing to remove those appendices and thus proposes
to remove Sec. Sec. 633.207(c) and (d). Finally, Sec. 633.207(e)
states that the State may give special preference to the use of mineral
resource materials native to the Appalachian region. FHWA proposes to
remove this provision, as 40 U.S.C. 14501(d)(1) broadly states that
States may give special preference to the use of materials and products
indigenous to the Appalachian region. As Sec. 633.207(e) is both
narrower and repetitive of the statute, FHWA proposes to remove it.
Section 633.208--Maintenance
Section 633.208 states that maintenance of projects constructed
under the Act shall be the responsibility of the State, and that the
State can arrange for maintenance by agreement with a local
governmental unit. This merely repeats the requirement in 40 U.S.C.
14501(g)(2) that States are required to maintain projects as provided
in title 23, U.S.C. Specifically, 23 U.S.C. 116(b) states that it is
the duty of States to maintain, or cause to be maintained, projects
they construct using FHWA financial assistance. As Sec. 633.208 is
merely repeating otherwise applicable statutes, FHWA proposes to remove
it.
Section 633.209--Notices to Prospective Federal-Aid Construction
Contractors
Section 633.209 states that State DOTs must include the notices set
forth in Appendix D to Subpart B of Part 633 in all future bidding
proposals for Appalachian Development System and Appalachian local
access roads construction contracts. As detailed below, FHWA is
proposing to remove Appendix D and therefore is proposing to remove
Sec. 633.209.
Section 633.210--Termination of Contract
Under Sec. 633.210, all contracts exceeding $2,500 must contain
suitable provisions for termination by the State, including the manner
in which the termination will be affected, and the basis for
settlement, and must describe conditions under which the contract may
be terminated for default and because of circumstances beyond the
control of the contractor. This provision is substantially similar to
23 CFR 635.125(a), although Sec. 635.125(a) applies to contracts
exceeding $10,000. The FHWA sees little reason for Appalachian
contracts to be treated differently. Further, as noted above in the
discussion of Sec. 633.203, applicable provisions of 23 CFR would
continue to apply under this proposal. FHWA therefore proposes to
remove Sec. 633.210.
Section 633.211--Implementation of the Clean Air Act and the Federal
Water Pollution Control Act
Section 633.211 currently states that implementing requirements
with respect to the Clean Air Act and the Federal Water Pollution
Control Act are included in Appendix B to Subpart B of Part 633. As
described below, FHWA proposes to remove all of Appendix B and
therefore proposes to remove Sec. 633.211 as well, as it just
references specific requirements currently found in Appendix B.
Appendix A to Subpart B of Part 633--Types of Contracts to Which the
Civil Rights Act of 1964 Is Applicable
Appendix A to Subpart B of Part 633 states that 23 U.S.C. 324, the
Civil Rights Act of 1964, and the implementing regulations at 49 CFR
part 21 are applicable to certain contracts awarded by State DOTs,
contractors, and first tier subcontractors. Those include construction,
planning,
[[Page 22880]]
research, highway safety, engineering, property management, and fee
contracts and other commitments with persons for services incidental to
the acquisition of right-of-way. The FHWA does not believe this
appendix is necessary, as it only states the applicability of 23 U.S.C.
324, Title VI of the Civil Rights Act of 1964, and DOT's implementing
regulations at 49 CFR part 21. The FHWA believes that the extent of
these requirements are clear and does not find that there is a reason
to specifically lay out their applicability for the Appalachian system
versus other Federal-aid projects. Accordingly, FHWA proposes to remove
Appendix A.
Appendix B to Subpart B of Part 633--Required Contract Provisions,
Appalachian Development Highway System and Local Access Roads
Construction Contracts; Appendix C to Subpart B of Part 633--Additional
Required Contract Provisions, Appalachian Development Highway System
and Local Access Roads Contracts Other Than Construction Contracts;
Appendix D to Subpart B of Part 633--Federal-Aid Proposal Notices
Appendices B, C, and D to Subpart B of Part 633 are outdated and
FHWA does not believe they are necessary to maintain. These appendices
list provisions that are required to be included in contracts. To the
extent that these provisions are not specifically required by statute
or other regulations, FHWA considers it unnecessary and unduly
burdensome to specifically detail the language of contract provisions.
To the extent that these provisions are required by other statutes and
regulations, FHWA does not find it necessary to repeat the mandates of
those statutes and regulations in these appendices. Accordingly, FHWA
proposes to remove Appendices B, C, and D.
Rulemaking Analyses and Notices
A. Executive Orders 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and DOT
Regulatory Policies and Procedures
This proposed rule does not meet the criteria of a ``significant
regulatory action'' under Executive Order 12866, as amended by
Executive Orders 14215 and 13563. Therefore, the Office of Management
and Budget (OMB) has not reviewed this rulemaking under those orders.
This proposed rescission would remove regulations that FHWA
believes are outdated, duplicative, and unnecessary. The FHWA believes
there may be some cost savings from this rescission, such as cost
savings from not having to include unnecessary contract provisions. The
FHWA, however, does not have data on the extent of those savings. The
FHWA seeks comments on any impacts that could result from removing the
provisions identified in this NPRM.
These changes would not adversely affect, in a material way, any
sector of the economy. In addition, these changes would not interfere
with any action taken or planned by another agency and would not
materially alter the budgetary impact of any entitlements, grants, user
fees, or loan programs. Consequently, a full regulatory evaluation is
not required.
B. Executive Order 14192 (Unleashing Prosperity Through Deregulation)
This proposed rule is not an E.O. 14192 regulatory action. This
rulemaking would not adversely affect, in a material way, any sector of
the economy. In addition, these changes would not interfere with any
action taken or planned by another agency and would not materially
alter the budgetary impacts of any entitlements, grants, user fees, or
loan programs. Consequently, a full regulatory evaluation is not
required.
C. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) (as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996; 5 U.S.C. 601 et seq.), agencies must prepare and make available
for public comment a regulatory flexibility analysis that describes the
effect of the rulemaking on small entities (i.e., small businesses,
small organizations, and small government jurisdictions). No regulatory
flexibility analysis is required, however, if the head of an agency or
an appropriate designee certifies that the rulemaking will not have a
significant economic impact on a substantial number of small entities.
FHWA has concluded and hereby certifies that this proposed rule would
not have a significant economic impact on a substantial number of small
entities; therefore, an analysis is not included. This proposed
rescission would only remove requirements that FHWA believes are
outdated and unnecessary.
D. Unfunded Mandates Reform Act
This proposed rule does not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4, 109
Stat. 48) for State, local and Tribal governments, or the private
sector of $100 million or more in any one year. Thus, the proposed rule
is not subject to the requirements of sections 202 and 205 of the UMRA.
E. Executive Order 13132 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in E.O. 13132. The FHWA has determined that this
action does not have sufficient federalism implications to warrant the
preparation of a federalism assessment. The FHWA has also determined
that this action would not preempt any State law or State regulation or
affect the States' ability to discharge traditional State governmental
functions.
F. Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3520), an agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information, unless the
collection displays a currently valid Office of Management and Budget
(OMB) control number. This proposed rule is deregulatory and so would
not impose any additional information collection requirements.
G. National Environmental Policy Act
FHWA has analyzed this proposed rule pursuant to the NEPA and has
determined that it is categorically excluded under 23 CFR
771.117(c)(2), which applies to the promulgation of rules, regulations,
and directives. Categorically excluded actions meet the criteria for
categorical exclusions under 23 CFR 771.117(a) and normally do not
require any further NEPA approvals by FHWA. This NPRM proposes to
rescind an outdated regulation and does not require any new Federal
actions or procedures. FHWA does not anticipate any adverse
environmental impacts from this proposed rule, and no unusual
circumstances are present under 23 CFR 771.117(b).
H. Executive Order 13175 (Tribal Consultation)
Executive Order 13175 requires Federal agencies to consult and
coordinate with Tribes on a government-to-government basis on policies
that have Tribal implications, including regulations, legislative
comments or proposed legislation, and other policy statements or
actions that have substantial direct effects on one or more Indian
Tribes, on the relationship between the Federal Government and Indian
Tribes, or on the distribution of power and responsibilities between
the
[[Page 22881]]
Federal Government and Indian Tribes. FHWA has assessed the impact of
this proposed rule on Indian tribes and determined that this proposed
rule would not have tribal implications that require consultation under
Executive Order 13175.
I. Regulation Identifier Number
A RIN is assigned to each regulatory action listed in the Unified
Agenda of Federal Regulations. The Regulatory Information Service
Center publishes the Unified Agenda in the spring and fall of each
year. The RIN contained in the heading of this document can be used to
cross reference this action with the Unified Agenda.
J. Rulemaking Summary, 5 U.S.C. 553(b)(4)
As required by 5 U.S.C. 553(b)(4), a summary of this proposed rule
can be found at <a href="http://regulations.gov">regulations.gov</a>, under the docket number.
List of Subjects in 23 CFR Part 633
Appalachia contracts bidding and implementation, Project funding
allocation and obligation, Project agreements, Construction labor and
materials, Maintenance.
Issued in Washington, DC, under authority delegated in 49 CFR
1.85.
Gloria M. Shepherd,
Executive Director, Federal Highway Administration.
For the reasons stated in the preamble, under the authority of 23
U.S.C. 315, FHWA proposes to remove subpart B of part 633
PART 633--REQUIRED CONTRACT PROVISIONS
Subpart B--[Removed and Reserved]
0
1. Remove and reserve subpart B, consisting of Sec. Sec. 633.201
through 633.211 and Appendix A through Appendix D to subpart B of part
633.
[FR Doc. 2025-09721 Filed 5-27-25; 4:15 pm]
BILLING CODE 4910-22-P
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