[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