Rescinding Requirements Regarding Federal-Aid Contracts for Appalachian Contracts

DEPARTMENT OF TRANSPORTATION <SUBAGY>Federal Highway Administration</SUBAGY> <CFR>23 CFR Part 633</CFR> <DEPDOC>[Docket No. FHWA-2025-0013]</DEPDOC> <RIN>RIN 2125-AG11</RIN> <SUBJECT>Rescinding Requirements Regarding Federal-Aid Contracts for Appalachian Contracts</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT). <HD SOURCE="HED">ACTION:</HD> Notice of proposed rulemaking. <SUM> <HD SOURCE="HED">SUMMARY:</HD> FHWA is proposing to rescind the rule and regulations issued on September 30, 1974, Federal-Aid Contracts (Appalachian Contracts). </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received on or before June 30, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Mr. Anthony DeSimone, Office of Infrastructure, (317) 226-5307, <E T="03">anthony.desimone@dot.gov</E> ; or Mr. David Serody, Office of the Chief Counsel, (202) 366-4241, <E T="03">david.serody@dot.gov,</E> 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. </FURINF> <HD SOURCE="HED">ADDRESSES:</HD> 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 <E T="03">www.regulations.gov</E> . 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 <E T="04">Federal Register</E> published on April 11, 2000 (Volume 65, Number 70, Pages 19477-78) or you may visit <E T="03">www.regulations.gov</E> . <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Electronic Access and Filing</HD> This document and all comments received may be viewed online through the Federal eRulemaking portal at <E T="03">www.regulations.gov</E> . 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: <E T="03">www.federalregister.gov</E> . <HD SOURCE="HD1">Background</HD> 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. <HD SOURCE="HD1">Section-by-Section Analysis</HD> <HD SOURCE="HD2">Section 633.201, 633.202—Purpose and Definitions</HD> 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 §§ 633.201 and 633.202. <HD SOURCE="HD2">Section 633.203—Applicability of Existing Laws, Regulations, and Directives</HD> 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, § 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 § 633.203. <HD SOURCE="HD2">Section 633.204—Fiscal Allocation and Obligations</HD> 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. <SU>1</SU> <FTREF/> The FHWA further does not believe it necessary to include a regulatory provision that would merely repeat 40 U.S.C. 14501(e). Similarly, § 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. <E T="03">See</E> 23 CFR 630.106(a)(2). Thus, FHWA believes that § 633.204(b) merely restates statute and FHWA practice and FHWA is proposing to remove this provision. <FTNT> <SU>1</SU>  Congress has further enacted separate provisions dealing with the Federal share for the ADHS under certain circumstances. <E T="03">See</E> 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. </FTNT> <HD SOURCE="HD2">Section 633.205—Prefinancing</HD> 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 § 633.205(a). <SU>2</SU> <FTREF/> The FHWA therefore proposes to remove § 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 § 633.205(b). <FTNT> <SU>2</SU>  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. </FTNT> <HD SOURCE="HD2">Section 633.206—Project Agreements</HD> Section 633.206(a) requires project agreements for projects under the Appalachian program to contain specific language. Under § 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 § 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 repeatin ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 24k characters. 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