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Federal Register / Vol. 86, No. 230 / Friday, December 3, 2021 / Rules and Regulations
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.

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Comments on 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 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. 1504c, 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.

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Consistent with 47 U.S.C. 1504c, 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 3f 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 FHWA20190037 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 employees 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 employees 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

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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 3f 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. 96354, 5 U.S.C.
601612, 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.
1044, 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
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