90 FR 103 pgs. 22876-22878 - Rescinding Requirements Regarding Required Contract Provisions for Federal-Aid Construction Contracts (Other Than Appalachian Contracts)
Type: PRORULEVolume: 90Number: 103Pages: 22876 - 22878
Pages: 22876, 22877, 22878Docket number: [Docket No. FHWA-2025-0012]
FR document: [FR Doc. 2025-09728 Filed 5-27-25; 4:15 pm]
Agency: Transportation Department
Sub Agency: Federal Highway Administration
Official PDF Version: PDF Version
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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.
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 www.regulations.gov. 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 www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Mr. James DeSanto, Office of Infrastructure, (614) 357-8515, james.desanto@dot.gov; or Mr. David Serody, Office of the Chief Counsel, (202) 366-4241, david.serody@dot.gov, 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 www.regulations.gov. 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: www.federalregister.gov.
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.
[top] 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.
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 regulations.gov, 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.
[top] For the reasons stated in the preamble, under the authority of 23 U.S.C. 114 and
[FR Doc. 2025-09728 Filed 5-27-25; 4:15 pm]
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