Broadband Infrastructure Deployment

CourtFederal Highway Administration
Citation86 FR 68553
Record Number2021-26231
Publication Date03 December 2021
Federal Register, Volume 86 Issue 230 (Friday, December 3, 2021)
[Federal Register Volume 86, Number 230 (Friday, December 3, 2021)]
                [Rules and Regulations]
                [Pages 68553-68560]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2021-26231]
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                DEPARTMENT OF TRANSPORTATION
                Federal Highway Administration
                23 CFR Part 645
                [Docket No. FHWA-2019-0037]
                RIN 2125-AF92
                Broadband Infrastructure Deployment
                AGENCY: Federal Highway Administration (FHWA), U.S. Department of
                Transportation (DOT).
                ACTION: Final rule.
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                SUMMARY: FHWA amends its regulations governing the accommodation of
                utilities on the right-of-way (ROW) of Federal-aid or direct Federal
                highway projects to implement requirements of the Consolidated
                Appropriations Act, 2018, for broadband infrastructure deployment. The
                requirements, which will apply to each State that receives Federal
                funds under Chapter 1 of title 23, United States Code (U.S.C.), aim to
                facilitate the installation of broadband infrastructure.
                DATES: This rule is effective March 3, 2022.
                ADDRESSES: This document, the Notice of Proposed Rulemaking (NPRM), the
                supporting economic analysis, and the public comments received may be
                viewed online through the Federal eRulemaking portal at: http://www.regulations.gov. An electronic copy of this document may also be
                downloaded from the Office of the Federal Register's website at https://www.federalregister.gov and the Government Publishing Office's website
                at www.GovInfo.gov.
                FOR FURTHER INFORMATION CONTACT: Ms. Julie Johnston, Office of
                Preconstruction, Construction and Pavements (HICP-10), (202) 591-5858,
                or via email at [email protected], or Mr. Lev Gabrilovich, Office
                of the Chief Counsel (HCC-30), (202) 366-3813, or via email at
                [email protected]. Office hours are from 8:00 a.m. to 4:30 p.m.,
                E.T., Monday through Friday, except Federal holidays.
                SUPPLEMENTARY INFORMATION:
                Background
                 Utility facilities, unlike most other fixed objects that may be
                present within the highway environment, are not owned nor are their
                operations directly controlled by State or local public agencies.
                Federal laws and FHWA regulations contained in 23 U.S.C. 109, 111, 116,
                and 123 and 23 CFR parts 1, 635, 645, and 710 regulate the
                accommodation, relocation, and reimbursement of utilities located
                within the highway ROW. State departments of transportation (State DOT)
                are required to develop Utility Accommodation policies that meet these
                regulations. 23 CFR 645.211.
                Legal Authority, Statement of the Problem, and Regulatory History
                 The Consolidated Appropriations Act, 2018 (Pub. L. 115-141),
                Division P, Title VII (``MOBILE NOW Act''), Section 607, Broadband
                Infrastructure Deployment (47 U.S.C. 1504), directs the Secretary of
                Transportation to promulgate regulations to ensure that States meet
                specific registration, notification, and coordination requirements to
                facilitate broadband infrastructure deployment in the ROW of applicable
                Federal-aid highway projects. Accordingly, this rulemaking is required
                by statute. This regulation addresses the need to update FHWA
                regulations to implement the Section 607 requirements.
                 FHWA published a NPRM on August 13, 2020 (85 FR 49328), seeking
                public comment on proposed revisions to its regulations governing the
                accommodation of utilities on the ROW of Federal-aid or direct Federal
                highway projects to implement the Section 607 requirements. FHWA also
                requested public comments on an economic analysis summarized in the
                preamble to the proposed rule and presented in a supporting statement
                and a spreadsheet found in the rulemaking docket (FHWA-2019-0037). FHWA
                received 30 public comment submissions. Commenters included several
                State DOTs, industry associations, associations of State and local
                officials, companies, and individuals. After carefully considering the
                comments received in response to the NPRM in light of the statutory
                requirements, FHWA is promulgating final regulations without changes to
                the proposed regulations.
                Overview of the Final Rule
                 The final rule, which aims to facilitate the installation of
                broadband infrastructure, will apply to each State that receives
                Federal funds under Chapter 1 of title 23, U.S.C., including the
                District of Columbia and the Commonwealth of Puerto Rico. The MOBILE
                NOW Act defines the term ``State'' and other terms that are used in the
                final rule such as ``appropriate State agency,'' ``broadband
                infrastructure,'' and ``broadband infrastructure entity,'' as discussed
                in the preamble to the proposed rule. See 85 FR at 49329.
                 In Sec. 645.307(a), FHWA sets out four new requirements of Section
                607 of the MOBILE NOW Act. First, Sec. 645.307(a)(1) requires that the
                State DOT, in consultation with appropriate State agencies, identify a
                broadband utility coordinator who is responsible for facilitating the
                infrastructure ROW efforts within the State.
                 Second, Sec. 645.307(a)(2) requires the State DOT, in consultation
                with appropriate State agencies, to establish a registration process
                for broadband infrastructure entities that seek to be included.
                 Section 645.307(a)(3) requires the State DOT, in consultation with
                appropriate State agencies, to establish a process for electronically
                notifying broadband infrastructure entities identified under Sec.
                645.307(a)(2), on an annual basis, of the State Transportation
                Improvement Program (STIP) and providing other notifications as
                necessary. FHWA assumes that to comply with this provision, States will
                create an electronic notification process, update their utility
                accommodation policies to include this new process, and also notify
                broadband companies of these changes, as discussed in the preamble to
                the proposed rule. See 85 FR at 49330.
                 Finally, Sec. 645.307(a)(4) requires that the State DOT, in
                consultation with appropriate State agencies, coordinate initiatives
                under Section 607 of the MOBILE NOW Act with other statewide
                telecommunication and broadband plans and State and local
                transportation and land use plans, including strategies to minimize
                repeated excavations that involve broadband infrastructure installation
                in a ROW. FHWA assumes a statewide coordinator will carry out these
                responsibilities, as discussed in the preamble to the proposed rule.
                See 85 FR at 49330.
                 Section 645.307(b) contains the Section 607 of the MOBILE NOW Act
                provision that, if a State chooses to provide for the installation of
                broadband infrastructure in the ROW of an applicable Federal-aid
                highway project, the State DOT must ensure that any existing broadband
                infrastructure entities are not disadvantaged, as compared to other
                broadband
                [[Page 68554]]
                infrastructure entities, with respect to the Section 607 program.
                 Consistent with Section 607 of the MOBILE NOW Act, Sec. 645.309
                provides that nothing in part 645, Subpart C, requires that a State
                install or allow the installation of broadband infrastructure in a
                highway ROW, and that nothing in part 645, Subpart C, authorizes the
                Secretary to withhold or reserve funds or approval of a Title 23
                project.
                Discussion of Comments Received in Response to the NPRM
                 FHWA received 30 public comment submissions in response to the
                NPRM. Commenters included several State DOTs, industry associations,
                associations of State and local officials, companies, and individuals.
                The following summarizes the comments received and FHWA's responses to
                the most significant issues raised in the comments.
                General Comments
                 FHWA received general comments on the NPRM that do not concern
                specific provisions of the rule. The general comments covered
                commenters' views on the rule and topics such as the rule's
                relationship to other regulations and authorities, timely
                implementation and compliance, suggested best practices, the
                eligibility of certain activities for Federal-aid funds, the need for
                the rule, the supporting economic analysis, and National Environmental
                Policy Act (NEPA) compliance.
                 Multiple commenters expressed support for the rule. Commenters
                cited the rule's potential to facilitate efficient broadband
                infrastructure deployment, including in rural areas, to complement
                efforts by other Federal entities, and to lay the groundwork for
                ``smart roads'' or other emerging applications. The commenters' support
                is noted.
                 One State DOT noted that the proposal broadly categorized all
                Broadband Facilities as utilities that are subject to 23 CFR part 645,
                which the commenter believed may be an unintended consequence of the
                rule.
                 This rule does not change the definition of the term ``[u]tility''
                under 23 CFR 645.105. Further, under 23 CFR 645.209(m) regarding
                utility determinations, in determining whether a proposed installation
                is a utility, the most important consideration is how the State DOT
                views it under its own State laws and regulations.
                 One commenter suggested that language be added to the rule to
                require a State DOT implementing this subpart to abide by the
                provisions of Title 47 of the U.S.C. and various rules and regulations
                issued by the Federal Communications Commission (FCC) under title 47.
                 This rule meets the mandate provided by Congress in Section 607 of
                the MOBILE NOW Act. It does not change the applicability of other
                requirements enacted by Congress or promulgated by the FCC.
                 One commenter stated that FHWA should ensure that policies
                developed pursuant to this directive are implemented in a timely manner
                and comport with existing regulations regarding ROW fees for
                telecommunications infrastructure. Another commenter suggested a 90-day
                deadline from the effective date of the final rule for States to
                achieve compliance.
                 While these comments emphasize the importance of implementing the
                final rule in a timely manner, including by providing a compliance
                date, other comments received on the NPRM state that implementing the
                final rule will involve additional responsibilities beyond existing
                practices and corresponding resources. FHWA appreciates both
                perspectives from the commenters and has included an effective date
                that is 90 days after the date of publication of the final rule in the
                Federal Register. This effective date acknowledges and reflects both
                the need for time to prepare to implement the final rule and the
                importance of timely implementation. Consistent with the statutory
                requirement codified at 47 U.S.C. 1504(c), Sec. 645.303 provides that
                this subpart applies only to activities for which Federal obligations
                or expenditures are initially approved on or after the effective date
                of this final rule.
                 One State DOT requested more direction about the purpose and
                objectives of the requirement for Webinars. The State DOT also asked
                FHWA to allow State DOTs to hold as many or as few Webinars or other
                engagements as may be necessary to satisfy the State's goals for
                broadband infrastructure deployment in transportation ROW and the needs
                of the State's telecommunications providers.
                 In the preamble to the proposed rule, FHWA explained that it
                assumed, for purposes of the economic analysis for the proposed rule,
                that FHWA employees would prepare and present one external and one
                internal Webinar to explain the proposed requirements to State DOTs.
                See 85 FR at 49329-49330. The reference to Webinars was limited to
                FHWA's NPRM rollout and was not intended to suggest expectations for
                State DOTs going forward. Like the proposed rule, the final rule
                contains no requirements that State DOTs or others hold Webinars.
                 One commenter noted that the utility coordination personnel in each
                State should require subsurface utility engineering (SUE) for placement
                of broadband as a best practice.
                 This comment is outside the scope of this rulemaking, which
                implements the Section 607 requirements. Since 1991, however, FHWA has
                been encouraging the use of SUE on Federal-aid and Federal Lands
                Highway projects as an integral part of the preliminary engineering
                process. Utility coordination personnel may consider the use of SUE for
                placement of broadband.
                 One State DOT recommended that FHWA consider that broadband in ROW
                for roads, transit, and rail is vital for intelligent transportation
                systems (ITS) and other infrastructure management purposes. The
                commenter noted that in addition to offering benefits today, such data
                flow options can benefit future users of the infrastructure. Therefore,
                the commenter asserts that such projects could be eligible for Title 23
                and Title 49 funds, where transportation purposes are carried out with
                such broadband infrastructure deployment in transportation ROW.
                Further, the commenter suggests that FHWA should encourage States to
                handle broadband infrastructure in a similar fashion as other utilities
                within the State.
                 FHWA appreciates the comment. This rule does not change any
                eligibilities for Title 23 or Title 49 funds as the underlying
                statutory authority does not make such a change. Moreover, each State
                has individual laws governing utilities. States continue to have the
                autonomy to implement or amend their laws to meet the requirements of
                this rule in a manner that fits with their existing practices and meets
                their needs and objectives.
                 One commenter noted concerns about match rates and installation of
                broadband because, the commenter stated, many rural areas and
                communities are struggling for funding and need to balance priorities.
                The commenter also mentioned that if rural areas have limited
                communication capabilities, pedestrian issues and automated vehicle
                technologies will not be maximized in rural areas.
                 FHWA notes that the purpose of the rule, which implements Section
                607 of the MOBILE NOW Act, is to facilitate deployment of broadband
                infrastructure, including in rural areas. However, the specific issues
                raised by the commenter are outside the scope of this rulemaking.
                 One State DOT commented that the requirements in this rule are not
                needed
                [[Page 68555]]
                nor would they provide additional benefits for the deployment of
                broadband infrastructure on Federal-aid highways. The commenter added
                that the requirements appear to create or duplicate work as the State
                already has established efficient processes and strong relationships
                with utility partners including broadband companies in their State.
                 This rule satisfies the mandate provided by Congress in Section 607
                of the MOBILE NOW Act. Further, the rule allows flexibility for States
                to use their existing processes to meet the requirements of this rule.
                 One commenter urged FHWA to reduce the assumed cost in the economic
                analysis because some States may already be in compliance. The
                commenter also suggested that cost savings, or economic benefits, of a
                Dig Once Policy should also be included in the economic analysis.
                 FHWA recognizes that some States already may be implementing some
                of the requirements of this rule. For example, in the Supporting
                Statement on the economic analysis for the proposed rule, FHWA noted
                that some States may add the broadband utility coordinator
                responsibility onto the role of an existing employee. However, FHWA
                lacks data and information on specific States' practices that would
                facilitate a more refined analysis. Although FHWA requested data and
                information to inform the economic analysis in the NPRM, FHWA did not
                receive relevant data or information.
                 As discussed in response to a comment on proposed Sec.
                645.307(a)(1), FHWA expects that the duties of a broadband utility
                coordinator are likely to vary across all States, but would be less
                than a full-time commitment. In the economic analysis for the final
                rule, FHWA assumes that roughly 50 percent of an employee's time might
                be taken up by performing the duties related to this provision, which
                represents the expected average burden of the broadband utility
                coordinator across all States.
                 Regarding the benefits of a Dig Once Policy, FHWA explained in the
                economic analysis for the proposed rule that the rule is expected to
                result in benefits from increased coordination between government
                agencies and broadband entities at different levels. FHWA expects this
                increased coordination generally would increase the efficiency of
                broadband projects and potentially result in fewer disruptions for area
                residents. FHWA, however, lacks the data and information needed to
                quantify these potential benefits. While FHWA in the NPRM requested
                data and information to inform the economic analysis, FHWA did not
                receive relevant data or information. Accordingly, FHWA acknowledges
                the potential benefits of a Dig Once approach on a qualitative basis.
                 One State DOT noted that the NPRM indicates the proposed rulemaking
                action is categorically excluded under 23 CFR 771.117(c)(1), and asked
                how FHWA made that determination.
                 This rule implements the requirements of section 607 of the MOBILE
                NOW Act (47 U.S.C. 1504) that are applicable to States that receive
                Title 23 Federal-aid highway funds. This rule does not involve and will
                not lead directly to construction. This rule establishes coordination,
                registration, and notification requirements that State DOTs will
                implement.
                Comments on Sec. 645.307(a)(1)
                 Multiple commenters expressed concern that the requirement to
                identify a broadband utility coordinator is an unfunded mandate.
                 For the reasons explained in the ``Rulemaking Analyses and
                Notices'' section of this preamble, this rule would not impose unfunded
                mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub.
                L. 104-4, 109 Stat. 48).
                 Multiple State DOTs disagreed with FHWA's estimates of the level of
                effort that is necessary to meet the rule's requirements. These State
                DOTs estimate a significantly higher resource impact from this rule
                than that estimated by FHWA. In particular, some State DOTs commented
                that there will be increased administrative, coordination, and
                inventory needs as a result of this rule and that the broadband utility
                coordinator may need to have specialized expertise due to the nature of
                the broadband industry.
                 FHWA expects that it is likely the duties of a broadband utility
                coordinator will vary across all States, but would be less than a full-
                time employee (FTE) commitment. As discussed in the NPRM, FHWA assumed
                in the economic analysis for the proposed rule that 30 percent of an
                employee's time would be utilized for these duties. After considering
                the public comments received in response to the NPRM and revisiting the
                time assumptions used in the economic analysis for the proposed rule,
                FHWA assumes that roughly 50 percent of an FTE's time might be utilized
                for the duties related to the broadband utility coordinator provision.
                This represents the estimated average burden of the broadband utility
                coordinator position across all States. FHWA has revised the economic
                analysis for the final rule to reflect the 50 percent assumption.
                 Two State DOTs sought clarification on ``efforts within the State''
                and suggested that ``ROW'' be specifically confined to transportation
                ROW.
                 The language in the final rule tracks the statutory language in
                Section 607 of the MOBILE NOW Act. The efforts in each State to
                implement the final rule may vary based on State law, policies, and
                practices for broadband infrastructure deployment.
                 One State DOT stated that more specificity regarding the duties of
                broadband utility coordinator may be helpful.
                 FHWA has not defined the duties of the broadband utility
                coordinator in this regulation in order to allow for any flexibility
                States may need to implement this regulation.
                 One State DOT asked to what extent are the other appropriate State
                agencies to have approval pertaining to the selection of the
                coordinator, who is to identify the other State agencies for
                consultation, and what level of documentation FHWA will require to
                verify that consultation has occurred.
                 Aside from providing for a State DOT's consultation with
                appropriate State agencies, the final rule does not include
                requirements relating to such agencies. Each State has flexibility to
                identify the other State agencies and to establish any other
                requirements or procedures, such as the level of documentation of
                consultation, to implement this regulation.
                 One State DOT asked whether, if the broadband utility coordinator
                resides in another agency besides the State DOT, Federal funds could be
                used to reimburse time and expenses of that coordinator and what
                documentation would be required.
                 This rule does not change any eligibilities for Title 23 funding
                consistent with governmentwide administrative requirements and cost
                principles in 2 CFR part 200.
                 One State DOT asked if FHWA will provide a list of minimum
                requirements that a non-DOT coordinator should possess concerning
                knowledge and understanding of the Federal guidelines concerning
                utilization of the ROW.
                 The final rule does not include such requirements and FHWA does not
                anticipate establishing such requirements. Rather, each State retains
                flexibility to determine the minimum requirements needed to implement
                this regulation.
                Comments on Sec. 645.307(a)(2)
                 FHWA also received comments on Sec. 645.307(a)(2), which requires
                a State
                [[Page 68556]]
                DOT, in consultation with appropriate State agencies, to establish a
                process for the registration of broadband infrastructure entities.
                 Multiple commenters asked that flexibility be given to allow States
                to rely on existing processes, avoid unnecessary duplication of effort,
                and limit the wasteful expenditure of limited State resources.
                 FHWA generally agrees with the commenters' suggestion. The final
                rule reflects the statutory requirements of Section 607 of the MOBILE
                NOW Act (47 U.S.C. 1504) but allows States flexibility to rely on
                existing processes and avoid duplication of efforts to meet the
                requirements.
                 One State DOT requested clarification on the purpose and meaning of
                ``registration of broadband infrastructure entities'' and ``goals''.
                The comment suggested that FHWA define ``goals'' with specific
                criteria.
                 Consistent with Section 607 of the MOBILE NOW Act, the final rule
                in Sec. 645.307(a)(2) requires a State DOT to establish a process for
                the registration of broadband infrastructure entities that seek to be
                included in broadband infrastructure ROW facilitation efforts within
                the State. The final rule in Sec. 645.307(a)(3) requires a State DOT
                to establish a process for electronically notifying broadband
                infrastructure entities of the STIP annually and as necessary to
                achieve the goals of the rule. FHWA has not included more specific
                goals or criteria in the rule in order to allow State DOTs the
                flexibility to implement this rule consistent with their respective
                State laws, policies, and practices.
                 One commenter requested clarification that the definition of
                ``broadband infrastructure entity'' is not limited to private companies
                but also includes any formal or informal entity serving broadband. As
                examples of such entities, the commenter cited municipal, State, and
                Tribal governments or agencies, associations of governments or agencies
                or intergovernmental bodies, rural electric cooperatives or public
                utilities, public-private partnerships, and non-profits.
                 Under 47 U.S.C. 1504(a)(3) and Sec. 645.305, the term ``broadband
                infrastructure entity'' means any entity that (A) installs, owns, or
                operates broadband infrastructure; and (B) provides broadband services
                in a manner consistent with the public interest, convenience, and
                necessity, as determined by the State. States have flexibility to
                determine which entities fit within this definition.
                 One State DOT asked for clarification regarding the registration
                process for broadband infrastructure entities that seek to be included.
                Specifically, the commenter asked whether FHWA will provide a list of
                qualifications that are necessary for a company to become registered,
                whether the broadband coordinator will handle the registration process
                and maintain the registration, whether the list of registered companies
                is disclosable under public records requests, and whether only
                registered broadband infrastructure entities will be permitted to
                occupy the State ROW.
                 States have flexibility to determine which entities fall within the
                definition of the term ``broadband infrastructure entity'' in 47 U.S.C.
                1504(a)(3) and any qualifications such entities need to have. States
                also have flexibility to establish a process, or use an existing
                process, for registration. Public records requests will be subject to
                applicable State laws, regulations, and policies. This rule does not
                require that only registered broadband infrastructure entities be
                permitted to occupy the State ROW.
                Comments on Sec. 645.307(a)(3)
                 Several comments concerned Sec. 645.307(a)(3), which requires that
                a State DOT, in consultation with appropriate State agencies, establish
                a process to notify electronically broadband infrastructure entities
                identified under Sec. 645.307(a)(2) of the STIP on an annual basis and
                provide additional notifications as necessary to achieve the goals of
                23 CFR subpart C.
                 One State DOT recommended that FHWA place additional emphasis for
                States to utilize the STIP and States' other medium- and long-range
                planning activities to convey Dig Once type opportunities to
                telecommunications companies as they plan and fund their construction
                of broadband.
                 Under the final rule, States have flexibility to establish a
                process, or use an existing process, to implement the registration and
                notification requirements. States may choose to convey Dig Once
                opportunities in connection with their STIP or their planning
                activities as they implement those requirements, and FHWA encourages
                States to do so.
                 One commenter stated that to facilitate general notification as
                required by the rule, FHWA should encourage States to maintain publicly
                accessible databases of ongoing projects along with any third-parties
                that have been contracted to review applications for projects. A
                database, maintained on a deemed consented basis, would allow for self-
                policing of potential conflicts and increase accountability for these
                projects, the commenter added.
                 States have flexibility to establish a process, or use an existing
                process, to implement the registration and notification requirements.
                 One State DOT asked why, since the STIP is made available for
                review and comment via electronic and other means, broadband
                infrastructure entities must be provided a separate, exclusive notice
                that is not necessarily afforded to other sectors of the public.
                 This rule implements the mandate provided by Congress in Section
                607 of the MOBILE NOW Act and codified at 47 U.S.C. 1504(b)(1)(C).
                 One State DOT asked if ``other notifications'' will be determined
                by the broadband utility coordinator and if metropolitan planning
                organizations (MPO) also will be required to notify broadband entities
                annually of the metropolitan transportation improvement programs.
                 Again, States have flexibility to establish a process, or use an
                existing process, to implement the registration and notification
                requirements, as well as to shape the role of the broadband utility
                coordinator. This rule applies to each State that receives funds under
                Chapter 1 of Title 23, U.S.C., including the District of Columbia and
                the Commonwealth of Puerto Rico. 47 U.S.C. 1504(b)(1); 23 CFR 645.303.
                It does not apply to MPOs.
                 One State DOT noted that for a Dig Once program to be most
                effective, broadband entities would have to be required to register and
                then actively participate in the program. The commenter asserted that
                industry so far has shown no interest in joint trenching or Dig Once
                types of voluntary programs and that without more willingness on the
                part of industry, a proactive notification system prescribed by this
                rule would not be significantly more effective than the State DOT's
                current notice approach where the data on projects is posted and
                updated on their website.
                 In Section 607 of the MOBILE NOW Act, Congress required FHWA to
                issue regulations that ensure that a State DOT, in consultation with
                appropriate State agencies, establishes a registration process for
                broadband infrastructure entities that seek to be included in broadband
                infrastructure ROW facilitation efforts within the State. The final
                rule adopts the language of Section 607 as proposed but does not
                establish additional requirements. Nothing in the final rule limits a
                State's ability to adopt additional registration requirements
                consistent with the regulation adopted through this rulemaking.
                [[Page 68557]]
                Comments on Sec. 645.307(a)(4)
                 In addition, FHWA received comments on Sec. 645.307(a)(4), which
                requires that a State DOT, in consultation with appropriate State
                agencies, coordinate initiatives carried out under this subpart with
                other statewide telecommunication and broadband plans and State and
                local transportation and land use plans, including strategies to
                minimize repeated excavations that involve the installation of
                broadband infrastructure in a right-of-way.
                 One commenter appreciated the need to work with other State
                agencies to coordinate a Dig Once program, but felt that a mandate,
                instead of guidance, from the Federal government goes too far. Another
                commenter stated that many cities already have a Dig Once policy and
                coordinate with utilities frequently, calling for fewer requirements
                and streamlining the delivery of Federal highway projects.
                 Congress expressly required FHWA to promulgate regulations
                containing this requirement. This rule meets the mandate in Section 607
                of the MOBILE NOW Act. States have flexibility to establish a process,
                or use an existing process, to meet the requirements of this rule, and
                States' processes may include streamlining the delivery of Federal
                highway projects.
                 Two commenters stated that FHWA should require States to adopt
                registration processes that are streamlined, efficient, and non-
                duplicative, and provide States guidance on strategies that minimize
                repeated excavations while preserving other laws and policies that
                promote infrastructure deployment.
                 FHWA has not included such requirements in the final rule. While
                FHWA generally supports streamlined, efficient, and non-duplicative
                processes and strategies, FHWA believes that States are well-positioned
                to determine their own appropriate approaches. Accordingly, States have
                flexibility to establish a process or strategy, or use an existing
                process or strategy, to meet the requirements of the final rule.
                 One State DOT stated that strategies to minimize repeated
                excavation of broadband infrastructure and other utilities are
                unsuccessful, and that broadband and communications companies are on
                their own schedule mainly due to customer demand and available budgets.
                The State DOT noted that while every effort is made to minimize
                repeated ROW excavations, it would be unfair to any broadband company
                to exclude them from installing infrastructure in the same corridor
                simply on the basis that a competitor installed its infrastructure
                weeks, months, or perhaps the year before they did.
                 States have the flexibility to establish a process, or use an
                existing process, to meet the requirements of the final rule. Also,
                under Sec. 645.309, nothing in this rule requires that a State install
                or allow the installation of broadband infrastructure in a highway ROW.
                 One commenter recommended that certain best practices be
                implemented to ensure no undue delays are experienced in minimizing
                repeated excavations, Federal regulations for ROW access fees are
                followed, and transparency is provided by any third-party entities
                contracted by the State. The commenter added that FHWA should use this
                rulemaking as an opportunity to encourage efficient processes like
                micro trenching.
                 The final rule implements the requirements in Section 607 of the
                MOBILE NOW Act (47 U.S.C. 1504) but does not establish additional
                requirements. Nor does this final rule change the applicability of any
                other Federal regulations. States have flexibility to establish a
                process, or use an existing process, to meet the requirements of this
                rule and to encourage best practices that they consider appropriate.
                 One State DOT stated that it anticipates difficulties resulting
                from a lack of jurisdiction and control over sister agencies or Local
                Public Agencies to obtain or have ready access to documents such as
                local land use plans. The State DOT would like clarification regarding
                ``consultation with appropriate State agencies'' and the expectation of
                formality, frequency and decisionmaking authority.
                 Consistent with Section 607 of the MOBILE NOW Act, the final rule
                requires that State DOTs, in consultation with appropriate State
                agencies, carry out the requirements of this rule. The final rule does
                not specify requirements for formality, frequency, and decisionmaking
                authority. Rather, each State DOT has flexibility to implement this
                rule under its own State laws, regulations, policies, and procedures.
                 One State DOT asked if the broadband coordinator is supposed to
                request all plans and strategies from broadband infrastructure entities
                and whether those plans and strategies are subject to disclosure under
                a public records request.
                 The intent of this section is to minimize excavations through
                project planning and coordination with other statewide broadband and
                land use plans. However, the final rule does not specify the duties of
                the broadband utility coordinator. States have flexibility to establish
                a process, or use an existing process, to meet the requirements of this
                rule and to determine the role of the broadband utility coordinator.
                Public records requests will be subject to applicable State laws,
                regulations, and policies.
                 One State DOT asked if a State DOT contractor's claims of
                construction delays or damage would increase if broadband entities are
                allowed to work within an active roadway construction project
                implemented by the State DOT contractor. They asked how this would
                impact the State DOT contractor's bond and what liability might the
                State DOT or its contractor assume for the broadband company working
                within the State DOT contractor's traffic control limits.
                 Utility work is commonly done within the project limits of an
                active roadway construction project. However, the final rule does not
                address the issues raised in the comment. They are outside the scope of
                this rulemaking.
                Comments on Sec. 645.307(b)
                 One State DOT requested clarity on the use of the terms
                ``existing'' and ``disadvantaged'' to assist States in determining how
                broadly the terms are defined.
                 The final rule implements the requirements of and uses the language
                in Section 607 of the MOBILE NOW Act. The final rule does not define
                these terms. States have flexibility to interpret these terms to meet
                the requirements of this rule. Nothing in this rule prohibits the
                installation of additional broadband facilities where facilities
                already exist.
                 One State DOT recommended that FHWA provide additional guidance and
                clarity on how to ensure existing entities are not disadvantaged with
                respect to the Section 607 program while also ensuring no broadband
                entity receives exclusive access to ROW. The rules should explicitly
                allow State DOTs to deny access based on physical, financial,
                operational, and safety constraints, the commenter recommended.
                 Nothing in the final rule or 23 CFR part 645 requires a State DOT
                to install or allow to be installed broadband infrastructure. Further,
                23 CFR part 645, subpart B, Accommodation of utilities, applies to the
                installation of utilities within the Federal-aid ROW such that the use
                and occupancy of the highway ROW does not adversely affect highway or
                traffic safety, or otherwise impair the highway or its aesthetic
                quality, and does not conflict with the provisions of
                [[Page 68558]]
                Federal, State, or local laws or regulations.
                 One commenter stated that while they support this proposal, it
                lacks instruction on the selection of the broadband provider beyond
                requiring that the State DOT ensure that any existing broadband
                infrastructure entities are not disadvantaged, as compared to other
                broadband infrastructure entities, with respect to the Section 607
                program. The single sentence instruction is simply insufficient to
                safeguard against gaming the system or politics dictating the process
                of selection of providers, the commenter added, and this lack of
                instruction could result in State monopolies for service providers that
                may not be providing the greatest benefit to the public.
                 Neither Section 607 of the MOBILE NOW Act nor the final rule
                requires a State to select a broadband infrastructure provider.
                 One commenter suggested adding that any third-party administrator
                contracted by a State DOT to facilitate broadband infrastructure
                deployment should not have a conflict of interest in administering
                access to the ROW (e.g., a subsidiary relationship to one broadband
                infrastructure entity that could affect competitors).
                 Each State has flexibility to determine the minimum requirements
                needed to meet this regulation.
                Comments on Sec. 645.309
                 One State DOT noted that it seems contradictory to require and
                implement this rule if broadband infrastructure installation is not
                allowed on State highways.
                 This rule meets the mandate provided by Congress in Section 607 of
                the MOBILE NOW Act. Nothing in this rule requires that a State install
                or allow the installation of broadband infrastructure in a highway ROW.
                 One State DOT asked with regard to Sec. 645.309, whether there are
                penalties or other consequences that FHWA may impose on State DOTs for
                not complying with Subpart C.
                 Consistent with 47 U.S.C. 1504(c), Sec. 645.309 provides that
                nothing in this subpart authorizes the Secretary of Transportation to
                withhold or reserve funds or approval of a project under Title 23 of
                the U.S.C.
                 One State DOT asked what consequence FHWA may impose on a State DOT
                if the coordinator residing in another agency fails to meet the
                broadband deployment goals, or performance measures that may be enacted
                in the future.
                 Consistent with 47 U.S.C. 1504(c), Sec. 645.309 provides that
                nothing in this subpart authorizes the Secretary to withhold or reserve
                funds or approval of a project under Title 23 of the U.S.C.
                Rulemaking Analyses and Notices
                Executive Order 12866 (Regulatory Planning and Review), Executive Order
                13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
                Policies and Procedures
                 The Office of Management and Budget (OMB) has not designated this
                rule a significant regulatory action under section 3(f) of Executive
                Order (E.O.) 12866. Accordingly, OMB has not reviewed it. This action
                complies with E.O. 12866 and 13563 to improve regulation. FHWA
                anticipates that the rule would not adversely affect, in a material
                way, any sector of the economy. In addition, the rule 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. The rule also does not raise any novel
                legal or policy issues.
                 The following is a summary of the results of the economic analysis
                for this rule. A supporting statement and a spreadsheet in the
                rulemaking docket (FHWA-2019-0037) contain additional details.
                 As discussed in the ``Discussion of Public Comments Received in
                Response to the NPRM'' section of the preamble, FHWA revised the
                economic analysis for the proposed rule in light of comments received
                suggesting that the required broadband utility coordinator position
                would take up more than 30 percent of a State employee's time, as FHWA
                assumed at the proposed rule stage. FHWA still expects that the duties
                of a broadband utility coordinator are likely to vary across all
                States, but that they would be less than a full-time commitment. For
                the final rule, though, FHWA assumed that roughly 50 percent of an
                employee's time might be taken up by performing the duties related to
                this provision, which represents the expected average burden of the
                broadband utility coordinator across all States.
                 With this revised assumption, the economic impacts of the final
                rule that FHWA is able to quantify are the costs that the rule would
                impose on States, and also on FHWA. The rule would result in total 10-
                year costs of $37.1 million or $30.7 million in 2018 dollars at
                discount rates of 3 percent or 7 percent, respectively. On an
                annualized basis, the rule would result in $4.3 million or $4.4 million
                in costs at 3 percent and 7 percent discount rates, respectively, and
                again in 2018 dollars. The costs of the proposed rule are primarily
                borne by States, with less than 1 percent of the total costs accruing
                to FHWA, and the remaining more than 99 percent of costs accruing to
                States. Based on the estimated economic impacts and the other criteria
                for a significant regulatory action under section 3(f) of E.O. 12866
                and as supplemented by E.O. 13563, this rule is not a significant
                regulatory action.
                Regulatory Flexibility Act
                 In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
                5 U.S.C. 601-612), FHWA has evaluated the effects of this rule on small
                entities and has determined that the action is not anticipated to have
                a significant economic impact on a substantial number of small
                entities. The rule affects States, and States are not included in the
                definition of small entity set forth in 5 U.S.C. 601. The rule would
                also affect broadband entities, but the impact on these entities is
                expected to be beneficial and also to involve potential cost savings.
                The rule is thus not expected to result in increased costs for
                broadband entities. Therefore, FHWA certifies that the action will not
                have a significant economic impact on a substantial number of small
                entities.
                Unfunded Mandates Reform Act of 1995
                 This rule would not impose unfunded mandates as defined by the
                Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
                This rule would not result in the expenditure by State, local, and
                Tribal governments, in the aggregate, or by the private sector, of $155
                million or more in any one year (2 U.S.C. 1532). In addition, 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. The Federal-aid highway program permits this type of
                flexibility. Finally, this rule only implements requirements
                specifically set forth in statute.
                Executive Order 13132 (Federalism Assessment)
                 This rule has been analyzed in accordance with the principles and
                criteria contained in E.O. 13132, and FHWA has determined that this
                rule would not have sufficient federalism
                [[Page 68559]]
                implications to warrant the preparation of a federalism assessment.
                FHWA also has determined that this rule would not preempt any State law
                or State regulation or affect the States' ability to discharge
                traditional State governmental functions.
                Executive Order 13175 (Tribal Consultation)
                 FHWA has analyzed this rule in accordance with the principles and
                criteria contained in E.O. 13175, ``Consultation and Coordination with
                Indian Tribal Governments.'' The rule implements statutory requirements
                that apply to States that receive Title 23 Federal-aid highway funds,
                and it would not have substantial direct effects on one or more Indian
                Tribes, would not impose substantial direct compliance costs on Indian
                Tribal governments, and would not preempt Tribal laws. Accordingly, the
                funding and consultation requirements of E.O. 13175 do not apply and a
                Tribal summary impact statement is not required.
                Paperwork Reduction Act
                 Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
                seq.), Federal agencies must obtain approval from the Office of
                Management and Budget for each collection of information they conduct,
                sponsor, or require through regulations. FHWA has determined that this
                rule does not contain collection of information requirements for the
                purposes of the PRA.
                National Environmental Policy Act
                 The Agency has analyzed this rulemaking action pursuant to the
                National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
                has determined that it is categorically excluded under 23 CFR
                771.117(c)(1), which applies to activities that do not involve or lead
                directly to construction. Categorically excluded actions meet the
                criteria for categorical exclusions under the Council on Environmental
                Quality regulations and under 23 CFR 771.117(a) and normally do not
                require any further NEPA approvals by FHWA. This rulemaking includes in
                FHWA regulations the coordination, registration, and notification
                requirements of 47 U.S.C. 1504 that are applicable to States that
                receive Title 23 Federal-aid highway funds. This rulemaking does not
                involve and will not lead directly to construction. FHWA does not
                anticipate any environmental impacts, and there are no unusual
                circumstances present under 23 CFR 771.117(b).
                Executive Order 12898 (Environmental Justice)
                 E.O. 12898 requires that each Federal Agency make achieving
                environmental justice part of its mission by identifying and
                addressing, as appropriate, disproportionately high and adverse human
                health or environmental effects of its programs, policies, and
                activities on minorities and low-income populations. FHWA has
                determined that this rule does not raise any environmental justice
                issues.
                Regulation Identification Number
                 A Regulation Identification Number (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 April and October of each year. The RIN contained in the heading of
                this document can be used to cross reference this action with the
                Unified Agenda.
                List of Subjects in 23 CFR Part 645
                 Grant programs--transportation, Highways and roads, Reporting and
                recordkeeping requirements, Utilities.
                 Issued under authority delegated in 49 CFR 1.81 and 1.85 on.
                Stephanie Pollack,
                Acting Administrator, Federal Highway Administration.
                 In consideration of the foregoing, FHWA amends part 645 of title 23
                of the CFR as set forth below:
                PART 645--UTILITIES
                0
                1. Revise the authority citation for part 645 to read as follows:
                 Authority: 23 U.S.C. 101, 109, 111, 116, 123, and 315; 47 U.S.C.
                1504; 23 CFR 1.23 and 1.27; 49 CFR 1.48(b); and E.O. 11990, 42 FR
                26961 (May 24, 1977).
                0
                2. Add subpart C to read as follows:
                Subpart C--Broadband Infrastructure Deployment
                Sec.
                645.301 Purpose.
                645.303 Applicability.
                645.305 Definitions.
                645.307 General requirements.
                645.309 Limitations.
                Subpart C--Broadband Infrastructure Deployment
                Sec. 645.301 Purpose.
                 To prescribe additional requirements to facilitate the installation
                of broadband infrastructure pursuant to 47 U.S.C. 1504.
                Sec. 645.303 Applicability.
                 This subpart applies to each State that receives funds under
                Chapter 1 of Title 23 of the U.S.C. and only to activities for which
                Federal obligations or expenditures are initially approved on or after
                the effective date of this subpart.
                Sec. 645.305 Definitions.
                 For purposes of this subpart, the terms defined in 47 U.S.C.
                1504(a) shall have the same meaning where used in these regulations,
                notwithstanding other provisions of this part or Title 23 of the U.S.C.
                Sec. 645.307 General requirements.
                 (a) A State department of transportation, in consultation with
                appropriate State agencies, shall:
                 (1) Identify a broadband utility coordinator, whether in the State
                department of transportation or in another State agency, that is
                responsible for facilitating the broadband infrastructure right-of-way
                efforts within the State. The broadband utility coordinator may have
                additional responsibilities.
                 (2) Establish a process for the registration of broadband
                infrastructure entities that seek to be included in those broadband
                infrastructure right-of-way facilitation efforts within the State.
                 (3) Establish a process to notify electronically broadband
                infrastructure entities identified under subsection (2) of the State
                Transportation Improvement Program on an annual basis and provide
                additional notifications as necessary to achieve the goals of this
                subpart; and
                 (4) Coordinate initiatives carried out under this subpart with
                other statewide telecommunication and broadband plans and State and
                local transportation and land use plans, including strategies to
                minimize repeated excavations that involve the installation of
                broadband infrastructure in a right-of-way.
                 (b) If a State chooses to provide for the installation of broadband
                infrastructure in the right-of-way of an applicable Federal-aid highway
                project under this section, the State department of transportation
                shall carry out any appropriate measures to ensure that any existing
                broadband infrastructure entities are not disadvantaged, as compared to
                other broadband infrastructure entities, with respect to the program
                under this section.
                Sec. 645.309 Limitations.
                 Nothing in this subpart establishes a mandate or requirement that a
                State install or allow the installation of broadband infrastructure in
                a highway right-of-way. Nothing in this subpart
                [[Page 68560]]
                authorizes the Secretary to withhold or reserve funds or approval of a
                project under Title 23 of the U.S.C.
                [FR Doc. 2021-26231 Filed 12-2-21; 8:45 am]
                BILLING CODE 4910-22-P
                

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