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Federal Register / Vol. 86, No. 230 / Friday, December 3, 2021 / Rules and Regulations
infrastructure entities, with respect to the Section 607 program.
Consistent with Section 607 of the MOBILE NOW Act, 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.

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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 FHWAs 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 rules 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 rules 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 utility under 23 CFR 645.105. Further, under 23 CFR
645.209m 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
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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. 1504c, 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 States goals for broadband infrastructure deployment in transportation ROW and the needs of the States 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 4932949330.
The reference to Webinars was limited to FHWAs NPRM rollout and was not intended to suggest expectations for State DOTs going forward. Like the proposed rule, the final rule contains no
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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
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