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Federal Register / Vol. 86, No. 230 / Friday, December 3, 2021 / Rules and Regulations
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Comments on 645.307a4
In addition, FHWA received comments on 645.307a4, 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 nonduplicative, 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
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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 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
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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
contractors 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 contractors bond and what liability might the State DOT
or its contractor assume for the broadband company working within the State DOT contractors 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 645.307b 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
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