Proposed Rule2025-09728
Rescinding Requirements Regarding Required Contract Provisions for Federal-Aid Construction Contracts (Other Than 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 certain regulations issued on October 2, 1987, Required Contract Provisions.
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 22876-22878]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-09728]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 633
[Docket No. FHWA-2025-0012]
RIN 2125-AG19
Rescinding Requirements Regarding Required Contract Provisions
for Federal-Aid Construction Contracts (Other Than 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 certain regulations
issued on October 2, 1987, Required Contract Provisions.
DATES: Comments must be received on or before June 30, 2025.
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>.
FOR FURTHER INFORMATION CONTACT: Mr. James DeSanto, Office of
Infrastructure, (614) 357-8515, <a href="/cdn-cgi/l/email-protection#375d565a524419535244565943587753584319505841"><span class="__cf_email__" data-cfemail="c1aba0aca4b2efa5a4b2a0afb5ae81a5aeb5efa6aeb7">[email protected]</span></a>; or Mr. David
Serody, Office of the Chief Counsel, (202) 366-4241,
<a href="/cdn-cgi/l/email-protection#2145405748450f5244534e455861454e550f464e57"><span class="__cf_email__" data-cfemail="82e6e3f4ebe6acf1e7f0ede6fbc2e6edf6ace5edf4">[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.
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 portions of the rule issued on October
2, 1987, Required Contract Provisions for Federal-Aid Construction
Contracts (Other than Appalachian Contracts), via 52 FR 36920, as
amended on February 13, 2004, by 69 FR 7118, amending 23 CFR part 633
subpart A. The rule proposed for rescission prescribes the method of
inclusion of construction contract provisions that are required by
existing statute and regulations. 23 CFR 633.101. Under these
regulations, FHWA requires that Form FHWA-1273, ``Required Contract
Provisions, Federal-aid Construction Contracts'' be physically
incorporated in each Federal-aid highway construction contract, other
than Appalachian construction contracts (23 CFR 633.102(b)) and any
lower tier subcontracts that may be made (23 CFR 633.102(e)). We
propose to rescind 23 CFR part 633, subpart A entirely and seek comment
on all aspects of that proposal.
Currently, to ensure that contract provisions required by statute
or regulation are including in construction contracts, FHWA requires
that those construction contracts physically incorporate Form FHWA-
1273. 23 CFR 633.102(b), (e), and (f). Form FHWA-1273 itself does not
impose additional requirements; it only states requirements imposed by
other statutes or regulations. See 23 CFR 633.103. For example, under
29 CFR 5.5(a), Federal agencies must insert in any contract in excess
of $2,000 for certain work specific clauses. Section IV of FHWA-Form
1273 includes this language and states when it is applicable. Neither
23 CFR part 633, subpart A nor FHWA Form-1273 contains the requirement
for this language to be included; instead, they only reference the
requirement. The requirement still would be required to be included
where applicable with or without 23 CFR part 633, subpart A. Form FHWA-
1273 merely aggregates several required provisions, and 23 CFR part
633, subpart A then requires that Form FHWA-1273 be physically
incorporated into construction contracts.
The FHWA finds the requirement to include Form FHWA-1273
unnecessary and is proposing to therefore remove 23 CFR part 633,
subpart A. Again, to the extent that provisions under other statutes or
regulations that are currently listed in Form FHWA-1273 are required to
be included in a construction contract, those provisions still must be
included in the contract. Further, FHWA is not proposing to eliminate
Form FHWA-1273 and envisions continuing to make updates as necessary
due to changes in applicable statutes or regulations. To the extent
that recipients, subrecipients, and contractors elect to use Form FHWA-
1273 to satisfy their obligations, FHWA intends allowing them to
continue to do so. The FHWA is merely eliminating the requirement that
those entities must use Form FHWA-1273 to fulfill these obligations.
Those entities may choose other ways, besides incorporating Form FHWA-
1273, if they find such alternatives preferrable.
In short, FHWA views prescribing the use of Form FHWA-1273 as
unnecessary and overly restrictive. While provisions contained in Form
FHWA-1273 continue to apply, FHWA finds no reason to mandate the use of
Form FHWA-1273 to ensure their inclusion. As such, FHWA is proposing to
rescind the regulations in 23 CFR part 633, subpart A. The FHWA seeks
comment on any reasons to rescind or not rescind these regulations.
[[Page 22877]]
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 rule under those orders.
This rule would remove the requirement that Form FHWA-1273, which
itself contains contract provisions required by statute and regulation,
be physically incorporated into construction contracts. It does not
remove the requirement for contract provisions within Form FHWA-1273
that are required by statute and regulation to still be incorporated
into construction contracts. As such, while FHWA is removing the
requirement to use a single mechanism to ensure compliance, it is not
removing the underlying requirements. For that reason, FHWA believes
that any monetary benefits or costs to this rule would be minimal. 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
rule 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 rule 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 rule will not have a
significant economic impact on a substantial number of small entities.
FHWA has concluded and hereby certifies that this 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 rescind the requirement to incorporate Form FHWA-1273 in
construction contracts. It does not add or remove any requirements
referenced in Form FHWA-1273 that may continue to be applicable.
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 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 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 remove the
requirement for to physically incorporate FHWA Form-1273 in
construction contracts. It does not affect the requirements that are
referenced in FHWA Form-1273 that may otherwise be applicable. 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 Federal Government and Indian Tribes. FHWA has assessed the impact
of this proposed rule on Indian tribes and determined that this 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 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
Grant programs--transportation, Highways and roads, Reporting and
recordkeeping requirements.
Issued in Washington, DC, under authority delegated in 49 CFR
1.85.
Gloria M. Shepherd,
Executive Director, Federal Highway Administration.
0
For the reasons stated in the preamble, under the authority of 23
U.S.C. 114 and
[[Page 22878]]
315; 49 CFR 1.48, FHWA proposes to remove and reserve 23 Code of
Federal Regulations part 633, subpart A.
[FR Doc. 2025-09728 Filed 5-27-25; 4:15 pm]
BILLING CODE 4910-22-P
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