Broadband Infrastructure Deployment
| Published date | 03 December 2021 |
| Record Number | 2021-26231 |
| Section | Rules and Regulations |
| Court | Federal Highway Administration |
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
