Broadband Infrastructure Deployment |
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Nicole R. Nason
Federal Highway Administration
13 August 2020
[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]
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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: Notice of proposed rulemaking (NPRM); request for comments.
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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 Julie.Johnston@dot.gov, or Mr. Lev Gabrilovich, Office
of the Chief Counsel (HCC-30), (202) 366-3813, or via email at
Lev.Gabrilovich@dot.gov. 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.
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\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.
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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.
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\2\ See 49 CFR part 5.
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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 $3.5 million on an
annual basis, again measured in 2018 dollars.
Table 1 summarizes the economic impacts of the proposed rule that
were able to be quantified at this stage of the regulatory process. The
quantifiable impacts are the costs that the proposed rule would impose
on States and also on FHWA. The costs of the proposed rule are
primarily borne by States, with less than 1 percent of the total costs
accruing to FHWA and the remaining more than 99 percent of costs
accruing to States. Based on the estimated economic impacts and the
other criteria for a significant regulatory action under Section 3(f)
of E.O. 12866 and as supplemented by E.O. 13563, this proposed rule is
not a significant regulatory action.
[[Page 49331]]
Table 1--Estimated Costs of the Broadband Infrastructure Deployment
Proposed Rule (2018$)
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Analysis
Calendar year period year Costs
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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
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Total Undiscounted Costs to FHWA.... .............. 75,502
Total Undiscounted Costs to State .............. 34,535,477
DOTs...............................
Undiscounted Total Costs............ .............. 34,610,980
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Total Costs with 3% Discounting. .............. 29,618,666
Total Costs with 7% Discounting. .............. 24,496,098
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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....
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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
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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