[Federal Register Volume 85, Number 157 (Thursday, August 13, 2020)]
[Proposed Rules]
[Pages 49328-49332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17525]


-----------------------------------------------------------------------

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: Notice of proposed rulemaking (NPRM); request for comments.

-----------------------------------------------------------------------

SUMMARY: FHWA proposes to amend 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: Comments must be received on or before September 14, 2020.

ADDRESSES: To ensure that you do not duplicate your docket submissions, 
please submit them by only one of the following means:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting 
comments.

[[Page 49329]]

     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey 
Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays. The telephone number is (202) 
366-9329.
    All submissions should include the agency name and the docket 
number that appears in the heading of this document or the Regulatory 
Identification Number (RIN) for the rulemaking. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal information provided.

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:

Electronic Access and Filing

    This document and all comments received may be viewed online 
through the Federal eRulemaking portal at http://www.regulations.gov. 
It is available 24 hours each day, 365 days each year. Please follow 
the instructions online for more information and help. An electronic 
copy of this document may also be downloaded by accessing the Office of 
the Federal Register's home page at: http://www.archives.gov/federal-register and the Government Publishing Office's web page at: http://www.govinfo.gov/app/frtoc/today.
    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination in the docket at the above address. Comments received 
after the comment closing date will be filed in the docket and will be 
considered to the extent practicable. In addition to late comments, 
FHWA will also continue to file relevant information in the docket as 
it becomes available after the comment period closing date, and 
interested persons should continue to examine the docket for new 
material. A final rule may be published at any time after close of the 
comment period and after DOT has had the opportunity to review the 
comments submitted.

Background

    FHWA recognizes that it is in the public interest for utility 
facilities to use jointly the ROW of public roads and streets when such 
use and occupancy do not adversely affect highway or traffic safety, or 
otherwise impair the highway or its aesthetic quality, and does not 
conflict with Federal, State, or local laws and regulations. The 
opportunity for such joint use avoids the additional cost of acquiring 
separate ROW for the exclusive accommodation of utilities. As a result, 
the ROW of highways is often used to provide public services to 
abutting residents as well as to serve conventional highway needs.
    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 and Statement of the Problem

    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, FHWA proposes to revise its 
regulations governing the accommodation of utilities to implement the 
Section 607 requirements. This rulemaking is required by statute. It 
addresses the need to update FHWA regulations to implement the Section 
607 requirements.

MOBILE NOW Act Direction for Broadband Deployment

    Once the regulations take effect, the Section 607 requirements will 
apply 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. The MOBILE NOW Act defines the term ``State'' to mean a 
State, the District of Columbia, and the Commonwealth of Puerto Rico. 
49 U.S.C. 1504(a)(4). The MOBILE NOW Act defines ``appropriate State 
agency,'' as ``a State governmental agency that is recognized by the 
executive branch of the State as having the experience necessary to 
evaluate and carry out projects relating to the proper and effective 
installation and operation of broadband infrastructure.'' 47 U.S.C. 
1504(a)(1). In addition, the MOBILE NOW Act defines ``broadband 
infrastructure'' as ``any buried, underground, or aerial facility, and 
any wireless or wireline connection, that enables users to send and 
receive voice, video, data, graphics, or any combination thereof,'' 47 
USCC 1504(a)(2), and ``broadband infrastructure entity'' as ``any 
entity that installs, owns, or operates broadband infrastructure and 
provides broadband services in a manner consistent with the public 
interest, convenience, and necessity, as determined by the State.'' 47 
U.S.C. 1504(a)(3).

Discussion of General Requirements and Limitations

    In proposed Sec.  645.307(a), FHWA sets out four new requirements 
of the MOBILE NOW Act. Proposed 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. Under the proposal, the 
coordinator may reside in the State DOT or in another State agency and 
may have additional responsibilities.\1\ The primary burden of this 
provision is imposed on States, though States will likely vary 
considerably in their implementation of it. Some States, for example, 
may add this responsibility onto the role of an existing employee, 
while other States may hire a new person to assume this role. The FHWA 
assumes that another cost to States would be the cost to update their 
websites to provide information about the coordinator and their work. 
The FHWA expects that the duties of a broadband utility coordinator 
would be less than a full-time commitment, assuming roughly 30 percent 
of an employee's time. This provision would also result in time burdens 
for FHWA employees, including time to disseminate information and to 
prepare and present

[[Page 49330]]

one external and one internal Webinar to explain the proposed 
requirements to State DOTs, and to conduct any follow-up activities 
related to the Webinars.
---------------------------------------------------------------------------

    \1\ The proposed requirements are to be implemented by State 
DOTs in consultation with appropriate State agencies. While FHWA 
expects employees of other State agencies to be involved, FHWA 
assumes that the majority of the time burdens imposed by this rule 
would accrue to State DOTs.
---------------------------------------------------------------------------

    Consistent with Section 607 of the MOBILE NOW Act, FHWA is 
proposing in Sec.  645.307(a)(2) to require the State DOT, in 
consultation with appropriate State agencies, to establish a 
registration process for broadband infrastructure entities that seek to 
be included. The FHWA believes that States may vary considerably in 
their approach for implementing this provision, and that States will 
likely choose an approach that fits with their existing processes. The 
FHWA assumes that States will spend time implementing this provision to 
establish the process, update their utility accommodation policy, 
notify broadband companies, and put the relevant information up on the 
States' websites. The FHWA assumes that these duties would require the 
most State employee time in the first year, and substantially less time 
in subsequent years. While FHWA does not have a formal role in the 
registration process, FHWA would likely incur costs associated with 
monitoring States' compliance with the requirements.
    Consistent with Section 607 of the MOBILE NOW Act, FHWA is 
proposing in Sec.  645.307(a)(3) to require the State DOT, in 
consultation with appropriate State agencies, to establish a process 
for electronically notifying broadband infrastructure entities 
identified under proposed Sec.  645.307(a)(2), on an annual basis, of 
the State transportation improvement program and providing other 
notifications as necessary. To comply with this provision, FHWA assumes 
that 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. The costs to States 
would primarily be upfront, and there would be smaller annual costs to 
send the notifications in subsequent years.
    Finally, FHWA proposes in Sec.  645.307(a)(4) to require 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. The FHWA assumes this proposed provision will be handled by a 
statewide coordinator. The cost that States would incur to implement 
this proposed provision may vary considerably due to differing 
processes across States. The FHWA assumed that the duties associated 
with this provision would require 25 percent of the time of a 
management-level employee on an annual basis. The FHWA does not 
anticipate any costs to accrue to the Agency as a result of this 
proposed provision, as FHWA would not be directly involved in these 
coordination efforts.
    Proposed Sec.  645.307(b) contains 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 
infrastructure entities, with respect to the Section 607 program. The 
FHWA assumes that this provision will not result in any time burdens or 
costs to FHWA, State DOTs, or broadband infrastructure entities.
    Consistent with the MOBILE NOW Act, proposed 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. The FHWA 
again assumes that this provision will not result in any time burdens 
or costs to FHWA, State DOTs, or broadband infrastructure entities.
    The FHWA requests comments on the proposed rule. The FHWA also 
requests comments and information regarding the assumptions used and 
other aspects of the economic analysis of the proposed rule to inform 
the economic analysis at the final rule stage. The FHWA presents the 
economic analysis in a supporting statement and a spreadsheet found in 
the rulemaking docket (FHWA-2019-0037) and summarizes the analysis 
under the ``Executive Order 12866 (Regulatory Planning and Review), 
Executive Order 13563 (Improving Regulation and Regulatory Review), 
Executive Order 13771 (Reducing Regulation and Controlling Regulatory 
Costs), and DOT Regulatory Policies and Procedures'' heading of this 
preamble.

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 FHWA has determined that the proposed rule will not be a 
significant regulatory action within the meaning of Executive Order 
(E.O.) 12866 or DOT regulatory policies and procedures.\2\ This action 
complies with E.O. 12866, 13563, and 13771 to improve regulation. The 
FHWA anticipates that the proposed rule would not adversely affect, in 
a material way, any sector of the economy. In addition, these changes 
would not interfere with any action taken or planned by another agency 
and would not materially alter the budgetary impact of any 
entitlements, grants, user fees, or loan programs. The proposed rule 
also does not raise any novel legal or policy issues.
---------------------------------------------------------------------------

    \2\ See 49 CFR part 5.
---------------------------------------------------------------------------

    The following paragraphs summarize the economic analysis for this 
proposed rule. A supporting statement and a spreadsheet in the 
rulemaking docket (FHWA-2019-0037) contain additional details. The FHWA 
requests data and information that could inform the economic analysis 
for this rule, including any estimates of resulting benefits, at the 
final rule stage.
    The FHWA estimated the costs of the proposed rule at $24.5 million 
for the 10-year period from 2020 through 2029, or $3.5 million on an 
annual basis, measured in 2018 dollars and using a 7 percent discount 
rate. If a 3 percent discount rate is used, these costs are estimated 
at $29.6 million for the same 10-year period, or $3.5 million on an 
annual basis, again measured in 2018 dollars.
    Table 1 summarizes the economic impacts of the proposed rule that 
were able to be quantified at this stage of the regulatory process. The 
quantifiable impacts are the costs that the proposed rule would impose 
on States and also on FHWA. 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 proposed rule is 
not a significant regulatory action.

[[Page 49331]]



   Table 1--Estimated Costs of the Broadband Infrastructure Deployment
                          Proposed Rule (2018$)
------------------------------------------------------------------------
                                             Analysis
              Calendar year                 period year        Costs
------------------------------------------------------------------------
2020....................................               1      $4,185,039
2021....................................               2       3,380,660
2022....................................               3       3,380,660
2023....................................               4       3,380,660
2024....................................               5       3,380,660
2025....................................               6       3,380,660
2026....................................               7       3,380,660
2027....................................               8       3,380,660
2028....................................               9       3,380,660
2029....................................              10       3,380,660
                                         -------------------------------
    Total Undiscounted Costs to FHWA....  ..............          75,502
    Total Undiscounted Costs to State     ..............      34,535,477
     DOTs...............................
    Undiscounted Total Costs............  ..............      34,610,980
                                         -------------------------------
        Total Costs with 3% Discounting.  ..............      29,618,666
        Total Costs with 7% Discounting.  ..............      24,496,098
                                         -------------------------------
            Average Annual Costs          ..............       3,461,098
             (Undiscounted).............
            Annualized Costs, 3%          ..............       3,472,211
             Discount Rate, 10 Years....
            Annualized Costs, 7%          ..............       3,487,693
             Discount Rate, 10 Years....
------------------------------------------------------------------------

    The FHWA anticipates that the proposed rule would result in 
benefits that would accrue primarily to broadband companies and to 
residents in areas adjacent to project sites. Several of the proposed 
provisions will result in increased coordination and cooperation 
between broadband companies and State DOTs. This increased coordination 
would have the effect of increasing the ability of broadband companies 
to conduct project work at times when roads are already closed or under 
construction for other purposes. Coordination of construction 
activities between State DOTs and broadband companies is likely to 
increase the efficiency of projects, and also result in fewer 
disruptions for area residents if road closures are coordinated rather 
than occurring at separate times for the purposes of State DOTs and 
broadband infrastructure. The FHWA, however, lacks the data and 
information necessary to quantify these potential benefits at this 
stage in the regulatory process. The FHWA requests data and information 
from commenters that could inform the economic analysis for this rule, 
including any estimates of resulting benefits or cost savings, or that 
could facilitate a quantification of costs, benefits, or cost savings 
at the final rule stage.

Executive Order 13771 (Reducing Regulation and Controlling Regulatory 
Costs)

    This proposed rule is not an E.O. 13771 regulatory action because 
it is not significant under E.O. 12866.

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 proposed 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 proposed rule affects States, and States are not included 
in the definition of small entity set forth in 5 U.S.C. 601. The 
proposed 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 proposed 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 proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). 
This proposed 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). Further, in 
compliance with the Unfunded Mandates Reform Act of 1995, FHWA will 
evaluate any regulatory action that might be proposed in subsequent 
stages of the proceeding to assess the effects on State, local, and 
Tribal governments and the private sector. 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. Finally, this proposed rule only implements requirements 
specifically set forth in statute.

Executive Order 13132 (Federalism Assessment)

    This proposed action has been analyzed in accordance with the 
principles and criteria contained in E.O. 13132, and FHWA has 
determined that this proposed action would not have sufficient 
federalism implications to warrant the preparation of a federalism 
assessment. The FHWA has also determined that this proposed action 
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)

    The FHWA has analyzed this proposed rule in accordance with the 
principles and criteria contained in E.O. 13175, ``Consultation and 
Coordination with Indian Tribal Governments.'' The proposed 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

[[Page 49332]]

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. The FHWA has determined that 
this proposed rule does not contain collection of information 
requirements for the purposes of the PRA.

National Environmental Policy Act

    The Agency has analyzed this proposed 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 (40 CFR 1508.4) and under 23 CFR 771.117(a) and 
normally do not require any further NEPA approvals by FHWA. This 
rulemaking proposes to include 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. The FHWA does not anticipate any environmental impacts, 
and there are no unusual circumstances present under 23 CFR 771.117(b).

Regulation Identification Number

    A RIN is assigned to each regulatory action listed in the Unified 
Agenda of Federal Regulations. The Regulatory Information Service 
Center publishes the Unified Agenda in 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.
Nicole R. Nason,
Administrator, Federal Highway Administration.

    In consideration of the foregoing, FHWA proposes to amend Part 645 
of Title 23 of the CFR as set forth below:

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.


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 authorizes the 
Secretary to withhold or reserve funds or approval of a project under 
Title 23 of the U.S.C.

[FR Doc. 2020-17525 Filed 8-12-20; 8:45 am]
BILLING CODE 4910-22-P